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LIBRARY OF CONGRESS, 




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UNITED STATES OF AMERICA. | 






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THE C^^^^^y"/^ 

CONSPIRACY 

TO DEFEAT THE 

LIBERATION OF GOVERNOR DORR! 




HUNKERS AND ALGERINES 



^ ^ ^ 1^ t:^ ^ ^ ^ ^ ^ ^ 



THEIR POLICY UJ¥VEIIiED 



PRINTED AND PUBLISHED BY JOHN WTNDT, 
No. 9 9 R E A D i: S T R i: E T . 

1845. 




TREASON DEFINED: 



FRANCIS C. TREAUWELL, 

COUNSELLOR AT LAW, AND LECTURER UPON THE 
CONSTITUTION. 





TO WHICH ARE ADDED, I UK 

DECLARATION OF INDEPENDENCE, 

AND 

THE CONSTITUTION 

OF THE 

UNITED STATES. 



The Greatest Movemeut of the Age. 



" The Members of the National Reform Asssociation have 
adopted the foUowiDg Pledge, as a bond of uniun,aiid as a test for 
candidates who may be nomihated for legislative office: 

" Wc, whose names are annexed, desirous of restoring to Man his Natural 
Right to Land, do solemnly agree, lh;it vie will not vote for any m.an,for any 
legislative office, who will not pledge, himself, m writing, to use all the influ- 
ence of his station, if elected, to pi event all further traffic in tlii I'ublic Lands 
of the States and of the United States, and to cause them to be laid out in 
Farms and Lots for the free and exclusive use of actual settlers." 

A circular of the National Reform Association observes : " We 
see this singular condition of affairs: that, while wealth in our 
country is rapidly accumulating; while internal improvements of 
every description are fast increasing, and while machinery has 
multiplied the powers of production to an immense extent; yet, 
with all these 7iattonai advantages, the compensation for useful 
labor is getting less and less. We seek the cause of this anonialj-, 
and we trace it to the monopoly of the land, which places labor 
»t the mercy of capital. We therefore desire to abolish the 
monopoly; not by interfering with the conventional rights of 
persons now in possession of the land, but by arresting the further 
rale of all lands not yet appropriated as private property, and by 
allowing these lands hereafter to be freely occupied by those who 
may choose to settle on them. We propose that the Public Lands 
hereafter shall not be owned, but occupied only, the occupant 
having the right to sell or otherwise dispose of improvements to 
any one not in possession of other land ; so that, by preventing 
any individual from becoming possessed of more than a limited 
rtUiintity, every one may enjoy the right." 



FOR SALE BY JOHN WINDT, 

99 Reade Street, N.Y. 
TREASON DEFINED, 

Price 6 Cents, 
A neat pocket etlition of the Decla- 
ration of Independence, and the Con- 
stitution, to which is prefixed a defi- 
nition of Treason, being an inquiry 
as to what constitutes that crime, and 
whether it be possible to commit it 
against an individual State. 

Every citizen, and particularly 
every juryman, ought to possess and 
study the Constitution of the United 
Stales, it being the "supreme law of 
the land," a plain and simple docu- 
ment, intended by its noble framers 
to be understood by the mass of the 
people, whose rights were to be pro- 
tected against legislative, executive 
or other oppression. Many enact- 
ments, dignified with the name of 
" laws," are passed by state and mu- 
nicipal legislatures, and even by Con- 
gress, that are repugnant to the "su- 
preme law," and are therefore not 
LAAv, and should be corrected in the 
jury box, which was designed to be as 
beneficial in correcting legislative 
(and sometimes judicial ) error, as the 
ballot box is to correct political error. 
Jurymen have so much neglected 
acquiring a knowledge of the "su- 
preme law of the land," and of iheir 
duties under if, that they are in gene- 
ral the mere automatons of the judge 
— and have thus brought into disre- 
pute the boasted Palladium of Free- 
dom — Trial by Jury. 

OCF On the last leaf of this cover 
are two pages of a most interesting 
pamphlet, just published by. John 
WiNDT, and for sale also at the ofiice 
of the Working Man's Advocate, 29 
Ann Street, N"Y. entitled 

YOUNG AMERICA! 

Explaining the Principles and Ob- 
jects of the National Reform Asso- 
ciation, with diagrams of a Township 
and Village, and the testimony of nu- 
merous public men, public writers 
and public presses, in favor of the 
movement. 

$1..50 per hundred, neatly stitched 
anti trimmed. It isputatalovv price, 
that the well wishers of humanity 
may puixhase for circulation. 

Orders (post paid) may be ad- 
dressed to John Windt, 99 Reade 
Street, New-York. 

This pamphlet offers, perhaps, the 
best practical answer that has yet 
been given to two of the most mo- 
mentous questions of this age : 



What shall be done to secure the Right to Labor ? 

AND 

What can be done to insure Honest Industry its justReward ? 





/^^r7-. 



r t :i r\ i \ T ? --J. i w <l\\ 

THE 

CONSPIRACY 

TO DEFEAT THE 

LIBERATION OF GOV. DORR; 



HUNKERS AND ALGERINES IDENTIFIED, 



THEIR POLICY UNVEILED 



TO WHICH IS ADDED, 

^ Keport 0f H)c €ast tx parte JDorr; 

COMPRISING 

MOTION TO SUPREME COURT OF THE UiNITED STATES ; PETITION 
OF SUNDRY CITIZENS OF RHODE ISLAND; AFFIDAVITS SHOW- 
ING THE TREATMENT OF GOV. DORR BY THE INSPEC- 
TORS OF THE PRISON; ARGUMENT OF COUNSEL, 
AND THE DECISION OF THE COURT. 



N E W- YO R K : 

PRINTED AND PUBLISHED BY JOHN WINDT, 
99 READE STREET. 

1845. 



F 



•Vis 



Entered, according to Act of Congress, in the year 1845, 

BY JOHN WIN DT, 

In the Clerk's Office of the District Court of the United States for the Southern 
District of New-York. 



THE CONSriRACY 

TO 

DEPEAT THE LIBERATION OF GOVEMOU DOEE; 

on, 

®|i€ (Ijunlicrs anb ^i^txims 3i)cntiftcj), 

AND 

THEIR POLICY UNVEILED. 



In the fifteenth year of the reign of Charles the Second, King- of England, 
that Monarch of his royal " will and pleasure, especial grace, certain know- 
ledge, and mere motion," as is stated therein, granted a Charter to Benedict 
Arnold and others, declaring them "from time to time, and forever hereafter, a 
body corporate and politic, in fact and name, by the name of The Governor and 
Company of the English Colony of Rhode Island and Providence Plantations, 
in IN'ew England, in America ; and that, by the same name, they and their suc- 
cessors shall and may have perpetual succession," &c. 

When the Constitution was framed and adopted by the United States in 1788, 
North Carolina and Rhode Island excepted, the State of Rhode Island had not 
changed its form of government, unless some change in the name may be con- 
sidered as abolishing the form. The Constitution of the United States went 
into operation in 1789. Rhode Island, taking no part in framing or ratifying it, 
was treated as a foreign State, and duties were laid upon her manufactures when 
imported into the States of the Union. 

On the 20th of May, 1790, a Convention of the State, assembled at New- 
port, ratified the Constitution of the United States ; having drawn up and pre- 
fixed to their act of ratification, eighteen specifications of principles, or expla- 
nations, which they declared to be consistent with the Constitution, and having 
also annexed twenty-one articles which they proposed and recommended as 
amendments thei-eto. In the third specification of principles, declared thus to 
be rights^ embodied in the Constitution, the Convention assert, " That the 
powers of government may be re-assumed by the people, whensoever it shall 
become necessary to their happiness." 

Eor more than fifty years, the State of Rhode Island continued without any 
other form of State Government than such parts of the Charter as were ac- 
quiesced in by the people, although several unsuccessful attempts were, at dif- 
ferent times, made to form a Slate Constitution. In the year 1840, the people 
of Rhode Island were engaged in an exciting discussion upon the propriety of 
forming fi)r the State, a Constitution based upon the prmciple of free sufliage. 
The discussion was maintained with nmch zeal by the friends and foes of free 
suffrage, until a convention was called at Providence in November, 1S41, which 
drafted and submitted to the people for their consideration a form of government 
for the State, called the People's Constitution. In the latter part of Ihe month 
of December following, the People's Constitution was adopted by a large ma- 
jority of the people of the State, and it is a remarkable fact in the history of 
this eventful time, that a majority of the freeholders were found to have voted 
for it, their names having been endorsed upon their ballots. In pursuance of the 



4 THE HUNKERS AND 

provisions of this Constitution, thus formed and adopted, an election for State 
officers was held under it, and by a decided majority of the suffrages of the 
people, Thomas Wilson Dorr was elected Governor of the State. 

Disregarding these repeated decisions of the people, and the revolutionary 
principle upon which the whole structure of our political institutions is based, 
" That the powers of government may be re-assumed by the people, whenso- 
ever it shall become necessary to their happiness," the minority of the people 
of Rhode Island, numbering perhaps one third of the legal voters, and possibly 
possessing two thirds of the wealth of the State, seeing themselves about to be 
deprived of powers which they had long assumed and abused, and reduced to a 
political level with their less wealthy fellow citizens, conspired to prevent the 
due organization and action of the new government. By imputing to the free 
suffrage party the design of plundering men of property, and the vaults of the 
banks, and violating the sanctity of families ; charges which they must have 
known to be as false as they were audacious, the Algerines, who pretended to 
be the friends of "law and order," succeeded in drawing back to their ranks 
some timid men who had voted for the People's Constitution. A few men who 
had attained public stations, without possessing that persevering firmness so 
needful in reformers, yielding to their impulses, brought discredit upon the suf- 
frage cause. Still, the friends of the People's Constitution would probably 
have triumphed over all these obstacles, but for the significant interference of 
the Executive branch of the government of the United'States. For this mani- 
festation of regard for the oppressor, and disregard of the rights of the oppress- 
ed, many of the friends of free suffrage were not prepared. They desired a 
Republican form of government, but were unwilling to fight for it, especially 
with that power whose sworn duty it was to guarantee it to them. Yieldino- to 
circumstances which he could no longer control, Gov. Dorr advised his friends 
to disperse, and then retired to another State. To use his own words, " The 
will of the people thus manifested was obeyed." 

The submission of the people to the Algerine government, instead of bringing 
peace, was the signal for the infliction upon the friends of free suffrage of°the 
most cruel indignities, and atrocious outrages ; unparalleled in this country, 
saving under the " law and order" of the tories during the revolutionary war. 
Martial law abolished civil government — the state was converted into a dis- 
orderly camp — the press was silenced — the people were robbed of their arms 
and other property, and some of the best men in the state were dragged to pri- 
son. Women were hurried before the courts and indicted for pretended of- 
fences ; but here the effrontery of the Algerines failed them, for they dared not 
bring the ladies to trial. Several of the most peaceful citizens were indicted 
for serving the people as moderators and clerks of town-meetings, and in other 
civil capacities. Others, and among them Gov. Dorr, were indicted for treason 
against the State of Rhode Island. Conscious of having committed no offence, 
Gov. Dorr returned to his native state, and was arrested at Providence on the 
31st day of October, 1843, and taken to prison, whence in February, 1844, he 
was taken to Newport and arraigned before the Supreme Court of the State on 
a charge of treason. The trial upon this charge, if an examination upon such 
a charge before a Stale tribunal can be called a trial, resulted in a verdict of 
guilty, and a sentence by that Court on the 25th day of June, 1844, as follows : 

" That the said Thomas W. Dorr be imprisoned in the State's Prison, at 
Providence, in the county of Providence, for the term of his natural life, and 
there kept at hard labor, in separate confinement." 

When asked by the clerk if he had anything to say why sentence should not 
then be pronounced against him, Gov. Dorr arose, and with that dignified self- 
possession for which he is so remarkable, briefly and cogently vindicated his 



ALGERINES IDENTIFIED. 5 

course, and the cause in which, with his associates, in perfect accordance with 
the principles of the revolution of '76, he had been engaged. It was here that 
the character of the man was more fully developed, and exhibited in all the 
beauty of its consistency. This was the crowning efllbrt of his labors in the cause 
of constitutional reform. It was the seal of his sincerity, and the enduring 
memorial of his fidelity. 

The idea of perpetual incarceration in a gloomy prison, known to have been 
peculiarly destructive to the human mind, could not shake the fortitude of Gov. 
Dorr. Equally above the reach of such influences, and superior to the tribunal 
about to pass sentence upon him, he reminded the court, in duty to himself, 
that he had not had a fair trial — that the place was justly exceptionable, if not 
unlawful ; the jury selected, not for their impartiality, but for their partisan 
hostility, and the case not permitted to be fully presented to them. That the 
jury were not permitted to judge of the law, nor to have it argued to them, nor 
to hear evidence in justification of the acts of the defendant. That several of 
the jurors had prejudged the case, and used violent and revengeful expressions 
against him. That the court, " in the hurry of this irial,^^ refused to hear the 
law argued to themselves ; to permit the defendant to prove the Constitution, 
or his election under it, or to repel charges of malicious motives. That this 
was a political trial, to gratify an insatiable spirit of revenge, and cut off his 
social and political existence. That although the sentence of the court in con- 
demning the acts of the defendant, will also condemn the principles upon which 
the Republic is based, yet it cannot " reach the man within.^'' It cannot affect 
the impartial judgment of his fellow citizens, nor deprive him of their affection- 
ate respect. Much less can it prevent them from reversing all the wrongs now 
committed. 

" From this sentence of the Court," said Gov. Dorr, in conclusion, " I ap- 
peal to the people of our Stale, and of our country. They shall decide between 
us. I commit myself without distrust to their final award. I have nothing 
more to say." 

The sentence of imprisonment for life was then pronounced by the Court, 
when Mr. Atwell read and offered a bill of exceptions for a writ of error from 
the Supreme Court of the United States, against the ruling of the Court, 
" That treason might be committed against a separate State." The Court 
ordered the bill to be entered on the minute book, and it makes a part of the 
record. " Mr. Atwell then moved the Court to suspend the execution of the 
.sentence in order to await the decision of the case, by the Supreme Court of 
the United States, upon a writ of error. The defendant," he said, " by the 
imprisonment which the sentence imposed, would be disabled from prosecuting 
his suit." The Court refused this request, remanded the defendant to prison, 
and adjourned for the term. Two days afterwards, on the 27th of June, Gov. 
Dorr was privately conveyed from Newport jail to the State Prison at 
Providence. Mr. Atwell and Mr. Turner, his responsible counsel, were at 
Newport at that time, but the removal was purposely concealed from them. 
Mr. Walter S. Burgess, who has since disclaimed responsibility as the counsel 
of Gov. Dorr, was permitted to accompany him in this hurried removal to the 
State Prison, under a pledge of secrecy, binding him to conceal the movement 
even from Messrs. Atwell and Turner, who were the responsible counsel. 
Having left Gov. Dorr at the door of the State Prison, Mr. Burgess was there- 
after denied all access to him, and treated by the Algerine Inspectors with as 
jnuch indignity as though he had been one of the responsible counsel of the 
Governor, or had been faithless to his pledge to conceal the disgraceful and 
stealthy act of incarceration. These circumstances were not all known abroad 
when the appeal of Gov. Dorr was sent forth to the people of the Union. The 



6 THE HUNKERS AND 

press in Rhode Island was then far from being free, and many facts in the case 
were suppressed or misrepresented. But an American citizen had been 
doomed to civil death, for an alleged offence hitherto unknown in our Union — 
treason against a separate State, and had appealed to his feliow citizens against 
an illegal, an unjust trial and sentence. How were they to respond to this 
appeal ? 

Some diversity of opinion upon this point was to be expected. Political 
action at the ballot-boxes ; a counter appeal to Judge Lynch for summary pro- 
ceedino-s; and an appeal by writ of error to the Supreme Court of the United 
States — were the remedies proposed. The former mode of operation was very 
generally approved, and resorted to. The latter was proposed by a few, but op- 
posed generally by those who laid claim to more than ordinary sensibility upon 
the subject of State rights, and by a large proportion of the legal profession. 
Although those who talked about Judge Lynch, probably never meditated any 
other than a contingent and very remote resort to violence, and perhaps none at 
all, the Algerine authorities seemed to be more apprehensiv^e of danger from 
this class of reformers than from both of the others. 

Having robbed the friends of free suffrage, men and women, of their arms, 
the Algerines, by the aid of the terrors of martial law impending, felt confident 
of an easy victory at the ballot-boxes in Rhode Island. Nor were they much 
less confident of their power to prevent the case from going up to the Supreme 
Court of the United States by vv^rit of error. This they had resolved upon, and 
they played most foully to accomplish it. They said the case should never go 
up to that court, if the authorities of Rhode Island could prevent it. They had 
flown high for legal advice. As high, perhaps, as counsel off the bench or on 
the bench v/ould allow them to go, eitiier for mone}^ or love of " law and order." 
They said that Dorr should neither be permitted to see his counsel, nor sign, 
nor see, a petition for a writ of error ! 

Did the authorities hurry Dorr from Newport and pledge Burgess to conceal 
the stealthy flight from Mr. Atwell, who was there attending as a member, the 
session of the legislature, for the purpose of depriving Dorr of the aid of his 
counsel in preparing his petition for a writ of error.' Vv^as this done to prevent 
Dorr from seeing his counsel, or from signing or seeing a petition for a writ of 
error ? If so, it was a conspiracy ! A conspiracy against Dorr, who, although 
by a fiction of law, is said to be civilly dead, still has rights, which may not be 
wrested from him v.-ith impunity. Did the nutkorities at Providence participate 
in this scientific, not to say artful movement .' May be they had no previous 
notice of it. They were ready to shut Dorr up in his cell when he came, and 
then turn around and spit contempt upon Burgess who had come with him. 
They have enough to answer for in the next paragraph. 

A conspiracy is a combination of men for an evil purpose. The Inspectors of 
the State Prison at Providence combined to prevent Dorr from seeing counsel, 
and from seeing or signing a petition for a writ of error. This was a conspiracy. 
Conspiracies are various in kind and character, and differ in degree of legal and 
moral criminality. Whatever may be the consequences in a legal procedure, 
of combining to deprive a man of his day to defend life or liberty in a court to 
which the Supreme law of the land gives him the right of appeal, there can be 
no question of the enormous moral turpitude of such an act. No man can justi- 
fy it. Dorr had this right, and all the authorities of Rhode Island knew that he 
desired and intended to exercise it. The Supreme Court knew it, and allowed 
one day, to prepare a bill of exceptions for that purpose. They were reminded 
of it again the next day, by Mr. Atweil's motion to suspend the execution of 
the sentence, and await the decision of the case by the Supreme Court of the 
United States, v/hich motion they overruled, and Dorr was hurried off to the 



ALGERINES IDENTIFIED. 7 

State Prison ; as the authorities of R. I. say, civilly dead. Was Dorr civilly 
dead, while he had the right of appeal to a court which had power to reverse 
this sentence, and declare him innocent of the alleged crime r Can the Court 
be justified in offering the slightest impediment to the exercise of that riii-ht ? 
Nay, more. Were they not bound in duty, by oath, and by the constitution 
and laws of the United States, to aid him in mukiruj his appeal, at least so far as 
to allow a reasonable time for the preparation of papers, and then to allow the 
writ of error, and see that the Chief Justice signed the usual citations to the Gov- 
ernor and Attorney General of the State ? A writ of error in such a case, is a 
writ of right. The constitution and laws of the Union recognize this right. It 
was as much the duty of the Supreme Court of Rhode Island, to allow the writ 
of error and issue the citations, as it was the duty of the Supreme Court of the 
United States, or either of the Justices thereof, to allow and issue those pre- 
cepts. This question may yet prove to be one of serious import to the Supreme 
Court of Rhode Island, unless the judges thereof can make it appear that they 
are absolved from, or have never taken the oath, to support the constitution and 
laws of the United States as the supreme law of the land, " anything in the con- 
stitution and laws of a7ii/ State to the contrary notwithstanding." The question 
may at any time arise, upon a motion for a writ of habeas corpus, and a stay of 
T)roceedino;s on the judgment. 

By the act of the State of Rhode Island relative to the officers and discipline 
of the State Prison, the oversight and control of the prison is vested in a board 
of seven inspectors appointed annually by the General Assembly, who are au- 
thorized to make all necessary rules and regulations for the internal police of 
the prison : provided the same are not inconsistent with law ; which rules, &.c., are 
to be entered in a book kept for the purpose, and a copy thereof given to the 
Warden and other officers of said prison. One of said board shall, at least once 
in every week, visit each prisoner, and in the absence of the warden and under- 
keepers, examine into his situation, hear any complaihis that he may make, see 
that the rules be strictly observed, and keep a record of all their meetings, week- 
ly visits, and complaints made to them by prisoners, whether well or ill-founded. 
The board of inspectors shall have full power over all prisoners, to enlarge their 
confinement, permitting more than one person to remain in a cell ; to have a 
nurse in sickness ; to go into the yard in the day-time ; admitting such commu- 
nication to and from their friends, and among themselves, and such books and 
other articles as they may deem expedient, &.c. 

The warden of the prison shall keep a journal, in which he shall enter " all 
complaints that are made to him by the convicts," all punishments, ^c, and 
visits of the inspectors and physicians. He shall see that the rules of the prison 
are strictly obeyed. 

It should be borne in mind, that the laws of the land are also the rules and 
regulations of the prison, as much as though they liad been re-enacted by the 
inspectors and copied into the warden's journal. The inspectors, in making 
rules and regulations, are restricted to such as are not inconsistent with law. 
The law of the land authorizes Gov. Dorr, by himself or by his counsel, to carry his 
case by writ of error to the Supreme Court of the United States for revision, and 
certainly to see and consult with his counsel in the case. The inspectors of the 
prison individually and collectively, by depriving Gov. Dorr of his right of ap- 
peal, have violated not only their prison regulations, but the iaws of their State 
and of the United States. By combining together for the perversion or obstruc- 
tion of justice, or the due administration of the laws, the inspectors have been 
guilty of a conspiracy ; an offence indictable at common law. To conspire to 
pervert justice and equity has, in all ages, under all circumstances, been deem- 
ed a heinous offence. What then shall be said when the conspirators are pub- 



8 THE HUNKERS AND 

lie officers, Appointed by the General Assembly of a State ? Magistrates au- 
thorized to make and execute laws ; to appoint officers and administer oaths to 
those officers to enforce the laws ! What an aggravation ! But this is not all. 
Who is the victim of the conspiracy ? A man at liberty, able to defend himself, 
provided with faithful counsel and means to pay them ? Alas ! Would to God 
it were so. If the conspirators are to be credited the victim is a dead man. 
Civilly dead ! A fiction in law ; a legal nonentity. A man who once had 
counsel, responsible and irresponsible, one of whom followed him to the narrow 
house of his civil interment, and afterwards refused to have part or lot in the 
resurrection. of his friend, because of the conspiracy of the seven magistrates 
aforesaid ! This is not the first time that Gov. Dorr has suffered severely from 
the neo-lect, and pusillanimous abandonment of his cause by his professed 
friends. It is impossible, in referring to the public acts of the inspectors of 
the State Prison at Providence, to treat them with that respect which it is desi- 
rable to cherish for the public officers of a State of this Union. They have 
chosen their course, and must meet the consequences. They appear to doubt 
the truth of their own declarations, and fear that their victim will not stay 
civilly dead. That, like the ghost of Banquo, he will uncivilly rise, with the mur- 
der upon his brow, and push them from their stools. Or like FalstafF, that 
Percy will rise from the dead, and prove a better counterfeit than himself. 

The late counsel of Gov. Dorr, too, must meet the consequences of the 
course they have elected to pursue. When their client was hurried to prison, 
their duty was plainly indicated by his last act ; an attempt to get his case re- 
vised by the Supreme Court of the United States. Thwarted in this, he made 
his appeal to the people of his state and country, and they have responded to 
that appeal ; in various modes, it is true, for variously have they interpreted 
his appeal. 

The National Reform Association of New York, seeing a man whom they 
believed to be not only unstained by crime, but one of the purest and best men 
in the land, incarcerated for life in the once hospitable region of Roger Williams, 
employed counsel to go to Rhode Island, and collect the facts of the case, with 
a view to send it by writ of error for revision, to the Supreme Court of the 
United States. This was their favorite mode of responding to Dorr's appeal. 
Indeed it was, in their view, the only way to secure justice to all parties con- 
cerned, and ensure a permanent settlement of all the questions that had arisen 
in the controversy, without a resort to violence. 

Their counsel found in existence in Rhode Island a most singular state of 
affairs, even among the professed friends of Gov. Dorr, and made due report 
thereof to the Society. His first brief note of the 27th July, 1S44, stated that 
the case stood well for a writ of error to the Supreme Court of the United 
States. Strange as it may seem, this position was generally doubted there, 
even by the friends of free suffiage. More than doubted — it was believed to 
be untrue ; a paradox. And this doctrine, that the case could not be carried up, 
was taught by the members of the legal profession generally, almost without 
exception. Gov. Dorr and his counsel had taken the ground of appeal by writ 
of error, in his defence before the Supreme Court of Rhode Island. And yet 
his counsel, after his incarceration, expressed strong doubts of being able to 
remove the case from Rhode Island. One of them said openly that he had no 
hope of being able to get the case up, unless the authorities of Rhode Island 
would consent to it, and the inspectors of the prison would permit the counsel 
to go in and consult with Gov. Dorr. That in case the inspectors should re- 
fuse such permission, he and his associates would abandon the case. The in- 
jBpectors did refuse such permission, and he abandoned the case accordingly, and 



ALGERINES IDENTIFIED, 



n-ave notice thereof to the counsel of the National Reform Association (See 
kr. Treadwell's affidavit, p. 28.) 

To hear from the Algerines the doctrine that their state was too sovereign to 
admit of an appeal from their highest court upon even a constitutional question, 
and that their authorities would never allow such an appeal to be made, was 
no novelty. But to hear that doctrine from the professed friends of free sufirage ; 
from intelligent politicians, claiming great, nay, almost exclusive respect for the 
doctrine of " state rights ;" from grave counsellors at law; more especially 
from one of the counsel of Gov. Dorr, was a heresy, which, from that quarter, 
was reo-arded with no little surprise. The counsel of the National Reform 
Association did not fail to notice the tendency and effect of such a develop- 
ment That individual, in accordance with the desire of the association which 
employed him, advised the friends of free suffrage in Rhode Island to make a 
statement of their wrongs, and publish it, with an appeal to their friends in other 
states, for such pecuniary aid as might he needful to enable them to obtain 
redress. Not seconded in this matter by their friends in R. I. and finding that 
the counsel of Gov. Dorr maintained a position not entirely free from ambi- 
o-uity, the Association relaxed its efforts to carry up the case, leaving their 
Sounsel free to act with the people of Rhode Island, as circumstances might 
require. An opportunity soon presented itself. The notice of Mr. Burgess 
that he had abandoned the case came very near the time of holding the great 
Mass Meetino- on the 4th of September, and while the preparations for that 
meetino- were the absorbing subject of thought and action. On the evening ot 
the 5th Sept. at a special meeting called at the house of Doctor Davis, the 
" Banner Cottage," for the purpose, a proposition was made to the Benevolent 
Free Suffrage Society by the counsel of the N. R. Association, to carry up 
the case of Gov. Dorr by writ of error, and to provide necessary means. The 
proposition was not accepted. At the desire of many persons present, a meet- 
ing was called the next evening at the house of Mr. Henry Lord, and Mr 
T?eadwell was invited to attend, and explain the mode of proceeding with the 
case, and to repeat his proposition. A large meeting was in attendance. 
Havin<r repeated the notice from Mr. Burgess of his having abandoned the case, 
and stated the mode of proceeding for a writ of error, and other circumstances 
as detailed on the evening previous, an appeal was made to Mr. Ireadwell to 
know if anything could be done in the matter, now that the case had been 
abandoned by gSv. Dorr's counsel. He replied yes. fhat the only real ob- 
stacle in the case was now removed. Before they abandoned the case, one ot 
them, Mr. Burgess, had been repeatedly reminded that as counsel tor Gov. 
Dorr, he could apply by petition to Judge Story for a MTit of error as well 
without as with an interview, with Gov. Dorr; but he replied as o ten, that 
Judo-e Story was as great an Algerine as any in Rhode Island, and that he 
would not apply to him, for that he knew it would be in vain 

In reply to inquiries made at this meeting, ^Ir. Treadwell stated that the 
mode of proceeding for a writ of error was by petition from Gov. Dorr o 
Jud"-e Story, the Circuit Judge, or to the court of which he was an associate 
iustfce. That since Gov. Dorr was not permitted to petition in person nor t<, 
see his counsel, his counsel could sign the petition in his beha f, and it would 
undoubtedly be as effectual in procuring the writ of error. That as his coun- 
sel refused to do this, the signature of Gov. Dorr's father to such pc ition and 
a power of attorney from him, was the step next to be recommended. If this 
should fail, let the next nearest relatives authorize the procedure, then tin- 
intimate friends in Providence, and next in succession the tricnds of Gov. Dorr 
in any part of Rhode Island. If all these sources should fad in succession, 
Mr T said he felt assured that persons from other States would institute pro- 



10 THE HUNKERS AND 

ceedings as best they might ; and under the severe hardship of the case, till 
now unheard of in civilized society, an entire exclusion of counsel from a man 
who has the right of appeal to a tribunal fully empowered to revise his case, 
reverse his sentence, and establish his innocence, such interposition ought to be, 
and probably would be, recognized by a court, having jurisdiction of all cases 
in law and equity arising under the Constitution. The meeting fully concurred 
in these suggestions. Acting thereon, several persons present took means to 
ascertain the views of Gov. Dorr's father and near relatives upon the subject. 
Finding that neither father nor relatives could be enlisted in an application for 
a vi^rit of error, these and other individuals, citizens of Providence, united in 
employing Mr. Treadwell as their counsel, with liberty to employ such other 
counsel as he might desire to have associated with him in the defence of the 
suit. To these individuals, the idea of abandoning the case of Gov. Dorr 
"wholly to persons from other states, was too revolting to be endured for a mo- 
ment. They resolved — that if father and mother, as his counsel had done, 
should abandon his case, or should petition his persecutors for a pardon on any 
terms, however disgraceful, and fatal to his future fame, — they would joyfully 
respond to his appeal, and take up his case where he left it, when the Alge- 
rines, having induced one of his counsel to join them in concealing the 
movement from the other two, hurried him to the State Prison two days before 
the time, as understood by Messrs. Atwell and Turner. The men who stood 
by Gov. Dorr on Acote's hill, until they received his orders to disband and 
disperse, now encouraged their wives, children, and female friends, to form a 
society for the liberation of their faithful and beloved chief. Such was the 
origin of the Dorr Liberation Society of Rhode Island, which sprung from 
this meeting. At first it was organized by females. Mrs. A. H. Lord was 
chosen President, and Miss L. J. Follet, Secretary. Shortly afterwards, both 
male and female members were admitted. Mrs. B. Davis was chosen Vice 
President, Miss M. J. Dinsmore, Cor. Sec, and Mr. Wilbour Wheaton, Treas- 
urer, Mr. Stephen C. Kenyon, Surety. Its objects, as stated in the Con- 
stitution, are, 
First By legal, constitutional and peaceful means, to effectuate the liberation of Thomas 

Wilson Dorr. 
Second — To re-assert and establish the People's Constitution. 

Third — To induce the People of this State and Nation, to make themselves acquainted 
with the principles of the Constitution of the United States, and to " preserve, pro- 
tect, and defend" the same. 

The following were the first 

PROCEEDINGS. 

At a meeting of the Dorr Liberatioa Society, held at the residence of Mrs. A. H. Lord, 
for the purpose of forming a Constitution, and for the choice of Officers, a committee of 
three, appointed for the purpose, reported the annexed Constitution, which was unanimous- 
ly adopted. 

Mrs. A. H. Lord was chosen President, and Miss Louisa J. Follet, Recording Secretary. 

The following preamble and resolutions were unanimously adopted : 

Whereas certain citizens of Rhode Island have employed Gen. Samuel Fessenden, and 
Francis C. Treadwell, of the city of Portland, in the State of Maine, Counsellors at Law, 
to carry the case of the State of Rhode Island vs. Thomas W. Dorr, by writ of error to the 
Supreme Court of the United States, and believing that course to be the only mode of estab- 
lishing judicially, the principles of the People's Constitution, and the innocence of Gov. 
Dorr : 

Be if. Resolved, By the Dorr Liberation Society, that an appeal be made to the people of 
the United States, for their sympathy in the cause of Free Suffrage, and for pecuniary aid 
in continuing the defence of this suit. 

Resolved, That twelve thousand shares, or certificates of ten cents each, of contributions 
to the fund, to be raised for the purpose of defraying the expenses of the defence of this 



ALGERINES IDENTIFIED. H 

suit, in tlie manner aforesaid, be immediately issued ; that the President of this Society be 
directed to prepare a suitable form and device, and issue the same forthwith, for the purpose 
of raising, as soon as may be, the amount of twelve hundred dollars thereon. 

Resolved. That the Dorr Liberation Society accept the offer of F. C. Treadwell, to furnish 
at the cost of printing them, any number of copies of the little book, entitled, "Treason 
Defined," containing, besides a definition of treason, a copy of the Declaration of Indepen- 
dence, and a copy of the Constitution of the United States, and offer them for sale at the 
following prices : $30 00 per thousand, $4 00 per hundred, G cents per single copy ; terms 
cash on delivery. 

Auxiliary Societies, booksellers, and other persons,' may be supplied, on application to 
the President of the Society, at her residence in Dean street, near Fountain street. 

The Dorr Liberation Society of Rhode Island, thus constituted, imtnediately 
set about a vigorous prosecution of its objects. The first thing to be done was 
to obtain a copy of the record of the trial, from the clerk of the Supreme Court 
at IS'i^vvport. On repairing thither early in September, the Counsel of the So- 
ciety learned that the record had not then been made up. It was written in 
part in two books of minutes, but mostly upon detached papers, some of which, 
the clerk said, were not then in the office. [See Mr. Treadwell's affidavit.] 
The individuals composing the Society, both before and after its formation, ex- 
erted themselves to collect money to defray its expenses. The greater part of 
the contributions, which in amount were considerable, came from the pockets of 
the members. 

That the Algerines would be opposed to the course of the Society was to be 
expected. From the real, or from the pretended friends of Dorr and free suf- 
frage, no opposition could have been anticipated. But an opposition arose from 
one of these classes, first by cautious intimations, artful insinuations, and insidi- 
ous inuendoes. As these means failed of their intended effect, a more bold 
course was pursued, until it became as .systematic, virulent and reckless, as it 
was senseless — as bitter and blind as the persecution of the Algerines, and 
wanting nothing but the povver, to render it as formidable. And why } Be- 
cause the Dorr Liberation Society had resolved that the case of Gov. Dorr 
should go by writ of error to the Supreme Court of the United States, at the 
then approaching term, and were taking efficient means to accomplish their 
purpose. Strange as these facts may appear to the friends of Dorr and free 
suffrage in other States, they are nevertheless true. 

When, in July, 1S44, the Counsel of the National Reform Association went 
to Providence, the great body of the people, the friends* of Dorr as well as the 
Algerines, declared that the case could not be taken up for revision. That there 
was in fact no appeal from the Supreme Court of Rhode Island in the case of 
the State against one of its citizens, upon a constitutional question. And this 
was called the " State Rights" doctrine. It was taught and assented to, if not 
believed, by the Algerines ; taught by the lawyers of both parties, and gene- 
rally believed, and almost, or quite, universally /earerZ to be true, by the Dorr 
men. It was even said, by Walter S. Burgess, and other professed Dorr men, 
that Gov. Dorr himself was of the same opinion, and had no confidence in being 
able to carry up his case by writ of error. That Gov. Dorr had an agency in 
revising the State laws, particularly in that relating to State treason. t When told 
that the case could be carried up, and referred to the beaten track of judicial 
decisions upon constitutional questions of analogous character, the great body 
of the friends of Dorr heard the news with gladness and joy. But they had 
many doubts upon the subject until they knew that the writ of error was allow- 
ed, and the Supreme Court of Rhode Island had been cited to send up its re- 
cord, duly authenticated, for revision. 

*B. F. Hallet, among the number. t Letter of F. C. T., July 31; 



12 THE HUNKERS AND 

Exceptions to this joy and gladness were not wanting among the professed 
friends of Gov. Dorr. To a few such, the annunciation was as wormwood and 
gall. It seemed clear that they did not desire the case should go up at all, and 
Were exceedingly anxious that it should not go up at the next term. If at 
that term a decision should be made, their fears amounted almost to assurance, 
that it would be against ^Aewi. And truly it might be against them, although in 
favor of Gov. Dorr, and the People. It has long been the misfortune of this 
gentleman, to suffer severely from the acts of his professed friends. When the 
cartridge-box was appealed to, these friends were neither killed nor wounded, 
but among the missing, and some of them threatening to join the ranks of the 
Algerines. When the ballot-box was appealed to, their ballots were missing, 
at least from the free suffrage boxes. If cast at all, they must have been cast 
for the Algerines. // mighty perhaps, be easy to point them out and check their 
names, if one had a list of the applicants for office to the coming adminislration. 
If Dorr's case had gone up, and been decided in his favor at the present term, 
as doubtless it would have been in case his counsel had been desirous to for- 
ward it. Dorr might have been called upon by Mr. Polk and his friends for 
certificates of character, political, physical and moral. In such case, some 
who, while Dorr is in prison, may consider their chance of success very fair, 
would be sure to be rejected, if he should be called upon to state to whom he 
alluded in his defence before the Court, when he said they hesitated to employ 
the ballot-box " at the vitally important election in 1843, as they had before 
hesitated to employ the cartridge-box, when force had become indispensable to 
the safety of their cause." (Trial of Dorr, p. 77.) It might then be seen who 
among the applicants for office had cowered under the frowns of the Algerines ; 
who by their timidity in the performance of their duty, or their treacherous 
abandonment of Dorr and his cause, had driven him into exile, and pierced his 
heart with many sorrows. If Dorr were at liberty, such men, with all their 
ambidexterity, would not be able to deceive him or his faithful friends who have 
the appointing power. A puss in boots, a cat in old Harry's kitchen without 
claws, would stand as good a chance in a scramble for scraps and sprats, as a 
cow-boy or a faithless Dorr man for an office under the administration of James 
K. Polk. 

The Democratic State Central Committee issued their bull against the Dorr 
Liberation Society, and sought to deprive them of the power of obtaining means 
to carry up the suit. Individually and collectively, with a few exceptions, the 
members of that committee resorted to the most discreditable means to crush 
the efforts of the Society to liberate Gov. Dorr : means equally inconsistent 
with the characters of gentlemen, friends of humanity and free suffrage. Sev- 
eral members of that committee had long taught the doctrine that the case of 
Gov. Dorr could not be carried up for revision. Prophets upon a small scale, 
having prophesied disaster and defeat to the Dorr men, sought to fulfil their own 
predictions by proscription and dismay. Some good friends of Dorr at New- 
port had collected one hundred dollars, and sent it directed to the Dorr Libera- 
tion Society at Providence. The messenger fell in with the Hunkers of the 
State Central Committee, and their cronies, who, by artful falsehood, persuaded 
him to carry the money back with him to Newport. This was at the time an 
annoyance to the Society, but the triumph of the miscreants was short-lived. 
The good men of Newport, one of whom was a member of the State Central 
Committee, though not in the confidence of the Hunkers, nor warned to attend 
their meetings, made due inquiry, and sent hack the money with interest, and a 
notice that they should ferret out the Hunkerism which had annoyed them so 
much, and try to discover the " connecting link'''' between the Hunkers and the 
Algerines ! The Newport Dorr men, true to the principles of their beloved 



ALGERINES IDENTIFIED. 13 

chief, formed a Dorr Liberation Society, auxiliary to the Society at Providence, 
and rendered efficient service in the cause, in word and deed ; in contributions 
of money ; and what was not less valuable in developing the villany, the hypo- 
crisy, and the treachery of the Hunkers. 

Before the Dorr Liberation Society was organized, the persons who formed 
it had resolved to appeal to the people abroad to contribute in small sums the 
needful means to pay the expenses of the further defence of the suit. About 
the middle of August, it was decided to publish small books, containing the 
Declaration of Independence, the Constitution of the United States, and a short 
definition of Treason, entitled " Treason Defined," and sell them at ten cents 
each. The w^ork was stereotyped, and the cost of the books each would be so 
small as to yield at that price a large profit, which was to be regarded rather in 
the light of a donation than as the value of the book. Yet there was substan- 
tial value in the book ; in a pocket copy of the Declaration of Independence, 
and Constitution of the United States, if there was none in the article upon 
Treason. It was deemed, too, a good deed, and well-timed, to endeavor at so 
little cost, to diffuse a knowledge of the Constitution, and promote a discussion 
of it in connexion with the subject of Treason, by putting it in the power of 
every one to carry the book in his pocket, and if possible, get it introduced into 
schools. One member of the State Central Committee subscribed for 100 copies 
of the book in August, on a paper being up in the office of the Republican 
Herald where the committee usually held their meetings. Other members of 
the committee were made acquainted with the objects of the publication, and 
if theij did not seek to defeat them, many persons usually acting in concert with 
them, did, particularly the intimate friends of Walter S. Burgess. Their op- 
position was made both to the object, the appeal by writ of error, and to the 
collection of means to sustain it. This opposition of the State Central Com- 
mittee and their clique, who had never been guilty of sustaining the cause by 
resorting to the cartridge-box, was now openly manifested, although some de- 
gree of disguise was occasionally deemed expedient. Finding that the feeling 
in favor of the writ of error in Dorr's case, was too strong to be crushed, how- 
ever it might, by intrigue and insolence, be repressed, the clique sought to di- 
vert this feeling, and turn it in another direction. An opportunity to do it was 
now discovered. 

Martin Luther had been convicted of the crime against Algerine " law and 
order," of presiding as Moderator at a town meeting, and sentenced to impri- 
sonment six months, and to pay a fine of five hundred dollars. At a meeting 
at the Franklin Hall on the 20th Sept., 1S44, it was decided that a scrip, or 
Liberty Stock, in sums of ten cents, be issued by the State Central Committee, 
to raise means to pay Luther's fine, and bring him out to influence the elections 
then pending. The object, so far as respected the elections, and Luther, was 
good and praiseworthy, and the means, under the circumstances, laudable also. 
Luther had been faithful to Dorr, and the People's Constitution. Like Dorr he 
had gone to prison, and, if need be, was ready to suffer death for the cause of 
truth. His term of imprisonment had expired before the meeting was called 
together, arid although he had a family anxious for his return, not a murmur es- 
caped from his lips, or was heard from his family. It was a singular fact that 
Luther's term of imprisonment was suffered to expire without an efibrt on the 
part of this clique of office-seekers, who knew he was unable to pay his fine, 
to relieve him. Luther had a case in the Circuit Court of the United Stales in 
Rhode Island, which involved the validity of the People's Constitution, and the 
points of law having been, pro forma, ruled against him, his counsel, B. F. 
Hallet, Esq., had taken steps, or was about to take them, to carry up the case 



14 THE HUNKERS AND 

to the Supreme Court, at Washington. To deliver a man like Luther from 
prison, and to provide him with ample means to pay liberal fees to his counsel, 
was a judicious movement, and would not have been unworthy of Mr. Hallet, 
if the plan had originated with him. When sympathy for Luther was so fully 
aroused, how did it happen that no means were proposed to carry up Dorr's 
case for revision .-' Dorr was sentenced for life. Luther for six months. Dorr 
had been as faithful to the People's Constitution as Luther, and was in every 
respect as worthy of public consideration. How then did it happen that no 
means were proposed at that meeting to liberate Dorr, by carrying up his case, 
as well as Luther's t Was Dorr forgotten at the meeting .' No : Mr. Hallet 
talked about him most eloquently ! So eloquently as to arouse the clerk of the 
Alo-erine Court from his slumbers in the orchestra. If the clerk did not respond 
amen ! to Mr. Hallet's appeals, the Hunkersof the committee did, which shows 
they could not have wholly forgotten Dorr. Why then did they not take mea- 
sures to carry up his case ? The reason is obvious. They did not desire to have 
it go up at all ; or if at all, not at the then next term of Court. The reason 
has been given before. It might be fatal to their schemes of office-begging, and 
expose their duplicity, their faithless desertion of Dorr's principles. 

The doctrines of the Hunkers, though not made for the occasion, were seized 
upon for the occasion. They taught that the case of Dorr could not be carried 
up, because it was the suit of a State against an individual. That there was no 
appeal, by writ of error or otherwise, from the Supreme Court of a State. Mr. 
Hallet himself had taught the same doctrine about a month before, and probably 
adhered to it then. He said emphatically, that the case of Dorr could noi be 
taken to the Supreme Court of the United States, for the reason above stated ; 
and when told that this case could go up, and howit could go up, and was re- 
ferred to authorities, to decisions of the Supreme Court in the cases of Cohens 
V. Virf/inia, and .Martin v. Hunter^ he petulantly replied, that the case of Dorr 
could not be got up to the Supreme Court of the United States in any manner. 

Whether these opinions were or were not the means of recommending Mr. 
Hallet as a suitable person to take charge of the application for a v/rit of error, 
doth not appear. If such was the fact, how sadly disappointed must the Hunk- 
ers have been, v/hen they found his application to the Supreme Court for a writ 
of error in this very Dorr case, successful. And j'et this heresy, that upon a 
judgment or decree in any suit in the highest Court of a State, where is drawn 
in question the validity of a State act on the ground of its being repugnant to 
the constitution or laws of the United States, and the decision is in favor of 
such its validity, cannot be re-examined and affirmed or reversed by the Supreme 
Court of the United States, was taught by the Hunkers as the genuine " Stale 
Mights''^ doctrine, and endorsed, as they said, by all their lawyers. Nay, more. 
By Gov. Dorr himself! That gentleman had, to be sure, in his defence, taken 
the ground, that the Treason Act of Rhode Island was repugnant to the Con- 
stitution of the United States, and hence void. That the People's Constitution 
was duly ratified, and hence justified him in all his acts under it. These points 
clearly appear upon the record. The first point was supported by Mr. Turner 
and by Gov. Dorr ; by the latter gentleman with great eloquence and ability. 
The other point was overruled, but it is clearly set down upon the record. 
Gov. Dorr himself made this defence, and put forth all the energy of his mind 
to sustain it by argument. Up to the time of his incarceration, he struggled to 
have it placed conspicuously upon the record, and there it stands, an imperisha- 
ble memento of his legal science. But this, the Plunkers say, is all bagatelle. 
That Gov. Dorr himself does not believe in it, has no confidence in it, and 
" don''t mean anything by it.'''' " He onl}^ says so ; he does not mean so." That 
this defence is only a ruse, to perplex the Algcrines. That Gov. Dorr does not 



ALGERINES IDENTIFIED. t5 

wish to have the case carried to Washington, and never intended to have it 
taken there. That it might take five years to get a decision upon the case, and 
operate to the prejudice of Gov. Dorr iu obtaining a, pardon from the Legisla- 
ture of the State of Rhode Island. 

And this doctrine, be it repeated, duplicity and all, these wiseacres say, is to 
be taken as the pure " State Uights " doctrine, and the teachers of it are to be 
taken and deemed to be " State Rights " men, par excellence ! Worse than 
all that. Governor Dorr, they say, is a " State Rights" man, of this stamp ! 
As if great national rights, and still greater individual rights, the rights of life 
and liberty, were all merged in two words, " State Rights ;" which, as a cant 
phrase, have become a cloak to conceal and justify the practice of every 
enormity. 

The Hunkers are not alone in maintaining these doctrines. The great body 
of the Algerines maintain them also. Dorr and the great body of free suffrage 
men and women, have resisted them with unwavering constancy, for five years 
at least. The Dorr men go for securing to the States, all the rights of the 
States, and no more. For securing to the Nation all the rights of the Nation, 
and no more. For securing to individuals, all the rights of individuals, and, 
except by force, will submit to nothing short of such security, whether de- 
manded by the old " Law and Order " Algerines, or by the new patent " State 
Rights " Hunker Algerines. 

Between these two parties, there are some differences, important to them- 
selves, but not very important to the great body of free suffrage people, who 
vastly outnumber>both of the Algerine factions — as will be fully proved whenever 
Dorr shall come out and unite them. These differences of the Algerines are 
differences, not of principle, for the principles of both are identical ; — but of 
position. The " Law and Order " Algerines are in power, and bask in its 
benefits. The Hunker Algerines are striving to oust their " Law and Order " 
brethren, and seize upon the spoils of office. The " Law and Order "Algerines 
want to keep Dorr grinding in the cells, and so do the Hunker Algerines, at 
least till the offices are filled under the new administration. The " Law and 
Order " Algerines are opposed to carrying up the case of Dorr by writ of error, 
and so are the Hunker Algerines. The " Law and Order " Algerines are at 
Avar with the Dorr Liberation Society, and so are the Hunker Algerines. In 
this latter particular, the Hunkers have practised to the full the villany so long 
taught by their examples, if they have not " bettered the instruction." 

The " Law and Order " Algerines, when forced by the distant thunders of 
public opinion, pealing upon their madness in conspiring against Dorr's right of 
appeal by writ of error, call in Burgess, who, faithful to his pledge to conceal 
the atrocious act of removing Dorr to the State Prison, from Messrs. Atwell 
and Turner, and faithless to his client in abandoning his cause, because the 
Inspectors refused him admission to the cell of Dorr afterwards, again becomes 
the confidential, if not the irresponsible counsellor of the oft betrayed Dorr. 
And in all this, the Hunkers entirely concur with their prototypes, the " Law 
and Order " Algerines. Both divisions of the Algerine army agree that the 
case shall not go up, if both combined can prevent it, by the destruction of the 
Dorr Liberation Society. But when both are forced to yield to the inflexible 
perseverance of that little band of Dorrite men and women, both unite as cor- 
dially as did Pilate and Herod, in recalling Burgess to resume his functions ; 
whether of i-esponsibility, or of ir-responsibility, doth not yet very clearly ap- 
pear. Both parties of Algerines agree that Dorr's cause shall be committed to 
a man who says that neither himself nor his client has any faith in his defence ! 
To a man who openly said, that carrying the case up by writ of error might 
operate to Dorr's prejudice in obtaining a pardon ! Verily Governor Dorr is 



16 THE HUNKERS AND 

in the hands of the Algerines ; the combined " Law and Order " — Hunker 
Algerines, and if they have not selected a suitable counsellor for him, it must 
be admitted that they have made a very appropriate selection to represent 
themselves. 

The Dorr Liberation Society, finding Dorr's cause deserted by Burgess and 
the Hunkers, persevered in their efforts to sustain it, and issued certificates of 
contributions to the fund for that purpose, according to the resolutions herein- 
before given (page 10). Until now, the Society had been composed of females 
onl}'-, to calm the perturbed spirits of the Algerines, by assurances that none 
but peaceful means were contemplated ; and also to give them all the assur- 
ance that woman's devotion and a mother's love could afford, that it would 
not be in the power of faithless, treacherous man, to turn them from their pur- 
pose, by betraying afresh the suffering victim. A new set of missionaries all 
at once sprung up in the interest of one or the other division of the Algerines, 
in the shape of a sort of " Cowboys,"* who went to the ladies, and by a species 
of flattery, accompanied by coaxing, teasing, insinuating, menacing remon- 
strance, endeavored to intimidate and drive them to abandon their cause, and 
cease to issue their certificates of contributions, and recal such as had been 
issued. The rallying questions of the ladies about cartridge-box, ballot-box, 
and possibly sauce-box adventures and misadventures, deeds done and feared to 
be done, silenced the " Cowboys," and drove them, like lacerated hounds and 
snarling curs, back to their kennels. In this extremity, the falsely-styled De- 
mocratic State Central Committee, whose aid had been duly invoked by the 
galled jades, interposed with their Bull, as follows : 

BULL OF THE STATE CENTRAL COMMITTEE. 

Providence, November 1, 1844. 
Mrs. Abbt H. Lord, 

President of the Dorr Liberation Society. 

Madam, — I would respectfully call your attention to the following Resolution, passed 
this evening at a nunnerous meeting of the Committee of the Democratic party of this 
City. 

"Resolved — That the Chairman of the Democratic State Central Committee be requested 
to address a note to Mrs. Abby H. Lord, President of the Dorr Liberation Society, to dis- 
suade her from any issue of the contemplated Dorr Liberation Stock, and to request her, if 
any has been issued, to call it in ; and that if the Society persist in their proposed plan, the 
Chairman of said Committee cause a notice of disapprobation to be pubUshed in the Demo- 
cratic nevfspapers." 

The above is an expression of opinion by Democrats, who are friends of Governor Dorr; 
and I presume that I need add nothing to induce you to comply with their declared wishes. 

Very respectfully, 

Your obedient Servant, 

W. R. Danforth, 
Chavtnan Dem. St. Ccn. Committee. 

Never let it be said hereafter that there are not courageous men in Rhode 
Island. These men may not, indeed, have taken up arms in support of the 
People's Constitution. They may not even have taken up their quills in sup- 
port of it, after having been forbidden to do so by the Algerines, Hunker, or 
" Law and Order." This, if true, would be no evidence of want of courage 
on their part, but rather of discipline and due subordination. That they are 
men of courage in an eminent degree, is proven by their Bull. No body of 

* During the Revolution, CowSoys were petty spies or scouts between armies or parties at 
variance ; pretending to be the iriends of both parties by turns, as they went from one camp 
to the other. 



ALGERINES IDENTIFIED. 17 

men, however numerous, ?re//-appointed, well-armed, and well-commanded, 
destitute of that essential element of the soldier — the Ahjerine soldier — would 
dare to attack a Society of Ladies ! a Society of Dorr Liberation Ladies ! en- 
gaged in the holy cause of taking up Dorr's appeal to them.^ precisely where he 
left it, and carrying it where, in struggling to send it, he met worse than death, 
civil death, upon the cross of conspiracy and treachery — humation alive ! 
incarceration in the State Prison ; forbidden to see father or mother, friend or 
counsel, while yet, as is now proved, he had the right of an appeal to the 
highest civil tribunal in the land ! 

In this situation, when the Judas Iscariots had sold him, and the Simon Peters 
and Simon Sorcerers had fled from him in dismay, the Ladies' Dorr Liberation 
Society espoused his cause. And this is the time, and this is the Society of 
Ladies, that General Danforth, armed cap-a-pie, with all his troops on paper, 
and in paper, duly heralded by the terrors of an advanced guard of Old Harri's 
long nines, bravely marches forth to attack ! If General Danforth had all the 
original capital of Robert JVIorris's bank at his command — to wit : no money, 
no rations, and three hundred hogsheads of rum — it would puzzle him to collect, 
even upon paper, an army of more prowess. General Danforth must not en- 
gross all the honor of this brave exploit. Let him publish his roster and com- 
pany rolls, and let every ral, and rat, et tatterdemalion, have his meed of praise, 
glory, and pap. If he wait till the appointments are made, he may have to 
march through Coventry with but a lank corporal's guard, or a hollow square 
in the Herald. 

Thus attacked, and threatened with the fulmination of other Bulls in the 
" democratic newspapers," the Ladies of the Dorr Liberation Society laid the 
case before their husbands and other male friends, and invited them to join the 
Society. The latter promptly responded to this call, and the Society, with 
increased numbers and vigor, moved on, as it had begun, harmoniously in the 
pursuit of its objects. The idea of identifying the Hunker- Algerines of the 
State Central Committee exclusively with the democratic cause, was an artifice 
too shallow to deceive the people of Rhode Island. Every member of the 
Dorr Liberation Society, male and female, was a democrat, not merely in 
name, but in principle and practice. In the important Presidential Election then 
pending, and now so gloriously consummated, they performed a conspicuous 
part, and rendered efficient service, by a rapid succession of assemblies to raise 
hickory poles, upon which were displayed flags, bearing the inscriptions, 
" Poik and Dallas ; Dorr and Liberty." But a single exception is recollected. 
At Newport, certain Hunkers, who have never been guilty of treason against 
the Algerines, nor of having been incarcerated with Dorr for faithful adherence 
to the People's Constitution, insisted upon not having Dorr's name upon a flag 
which they raised in honor of Polk and Dallas. A heavy gale of wind soon 
arose, when Boreas pierced the tlag with his numerous arrows, and blew it to 
atoms. Another pole and flag was raised, duly dedicated and inscribed, " Polk 
and Dallas; Dorr and Liberty." Boreas flung abroad its folds in beautiful 
display, and there it waved until the elections ended in triumph ; showing that 
Boreas was in favor of Polk and Dallas, but not without the free sullrage qua- 
lification of Dorr and Liberty for the basis of their administration. 

The threat of the Hunkers, " that if the Society persist in their proposed plan, 
the Chairman of said Committee cause a notice of disapprobation to be pub- 
lished in the democratic newspapers," had no terrors in it for the Society. 
They sought to have their proposed })lan, the release of Dorr through the aid 
of a writ of error, and the diffusion of all possible knowledge of the Consti- 
tution and Laws of the United States, particularly the right of bearing arms, 
the privilege of the writ of habeas corpus, and other important rights which 
2 



18 THE HUNKERS AND 

had been trodden down by the Algerines — published in the democratic newspa- 
pers. They pubhshed their " proposed plan," their constitution and proceed- 
ings, in the Gazette, and paid for it. They requested the Herald to publish 
them on the same terms, cash down ; but that organ of the Hunkers could not 
be induced to do it for love, money, nor hatred. The Committee dared not to 
publish the " proposed plan" in the Herald, and then follow it with a notice 
of their disapprobation in the same paper. The people would be able then to 
compare them. They would be sure to approve the " proposed plan," and ask 
what objection the State Central Committee, if they had any democracy or 
Dorrism about them, could possibly have to its most speedy consummation. 
This course would have exhibited the cloven foot of the Hunkers in all its de- 
formity. They might as well have published in their organ that the Herald had 
been sold to the " Law and Order " Algerines for fifteen hundred dollars ; and 
that the money, having been planked with the proposition to purchase,* with 
liberty to keep it over night, and dream upon it, and sleep upon it if possible, 
was a boon too tempting to be refused. 

The " proposed plan" of the Dorr Liberation Society, was hailed with joy 
wherever it was known, throughout the country, saving by the Algerines. To 
both divisions of that corps, the mere proposition was alarming, but perhaps 
more immediately so to the Hunkers. 

The Dorr Liberation Society, after vexatious detentions of about six weeks, 
obtained a copy of the record of the trial of the case, duly authenticated by the 
Clerk of the Supreme Court at Newport, and proceeded to draw up their pa- 
pers. They well knew that it was desirable to commence with a petition signed 
by Gov. Dorr in person, but as all access to him had been denied, they had no 
expectation of being able to obtain his signature in any very short time. Still, 
the regular steps were to be taken, and evidence of the denial of one right was 
deemed to be good ground for demanding another, or for the allowance of the 
original right to the writ of error, upon the best application that circumstances 
would admit of obtaining. 

On the 11th of Nov., 1S44, Mr. Treadwell, of counsel for the Society, made 
a written application to the Mayor of Providence, for liberty, in company with 
Gen. Fessenden, associate counsel, to visit Gov. Dorr, and confer with him upon 
all matters needful for his defence. A few days after this request was made, 
the counsel of the Society called on the chairman of the Board of Inspectors, 
and left a petition with him., with a request that Gov. Dorr might see it, and 
have liberty to sign it. His verbal and written reply, both in the negative, will 
he found in the affidavit of Gen. Fessenden, and in the copy of the letter an- 
nexed thereto, in the report of the case. 

The Mayor of Providence returned the petition that had been left with him 
on the 18th of Nov., on the evening of the same day. That petition was im- 
mediately taken to Mr. Sullivan Dorr, the father of Gov. Dorr, and left with 
him for his signature, full explanations of the objects of the Society having been 
made to him. Mr. Dorr expressed favorable opinions in relation to the course 
the Society had taken, and said he Avould consult his counsel upon the subject. 
The next morning Mr. Dorr returned the petition unsigned, and declined giving 
a reason for not having signed it ; but said that, at some future time, he might 
be able to give such a reason. Mr. Dorr expressed great indignation at the 
treatment his son received from the Inspectors of the prison. He had signed 
memorials to the Legislature to pardon his son, but he would not sign a petition 

* Such a proposal was made b}' the Algerines, accompanied with the money, about 
$1500, as was said; urging the proprietor to keep the money over night, and consider of it 
seriously. The proposition, it is understood, has been declined, and the money returned ; 
whether through the State Central Committee, or otherwise, is unknown to the writer. 



ALGERINES IDENTIFIED, I9 

to the Supreme Court of the United States, for a writ of error, for the purpose 
of justifying his son, and establishing his innocence. Mr. Dorr had previously 
expressed the apprehension, that any attempt to carry up the case by writ of 
error would tend to his son's prejudice in an application for a pardon. On this 
subject, his remarlcs were in concurrence with the sentiments expressed by 
Walter S. Burgess, Esq. 

The Dorr Liberation Society regretted exceedingly tliis determination of the 
father, to withhold his signature from a petition to carry the case where the son 
had labored so hard, so ably, and so long, to have it go. The more so, inas- 
much as a judicial magistrate of the highest character in the country, was be- 
heved to have expressed the opinion, that the authorities of Rhode Island had 
no right to prevent Gov. Dorr from signing a petition for a writ of error ; and 
further, that under the circumstances, the signature of the father of Gov. Dorr 
to the petition, would be, and ought to be, deemed sufficient to allow the writ 
of error, if a case of jurisdiction should be presented. 

The next step was to get the petition signed by citizens of Providence. 
Here there was no difficulty. At a late hour in the evening, when it was pro- 
posed to have the petition so signed, more than forty citizens of Providence 
were collected in a few minutes at the " Banner Cottage," who were happy to 
have an opportunity to see and sign such a petition. Had it been desirable to 
obtain more signatures, hundreds, aye, thousands of the citizens of that city, 
where Gov. Dorr was so well known, would gladly have added theirs. This 
petition, for prudential reasons,* was addressed " To the Chief Justice and As- 
sociate Justices of the Supreme Court of the United States, holden at Washing- 
ton," and in this shape was shown to one of those Justices. It has been stated 
probably on good grounds, that the Justice referred to, after inquiring the reason 
why Gov. Dorr's father had not signed the petition, remarked, that if instead 
of having been addressed to the Court, it had, with the evidence exhibited of the 
exclusion of counsel, which he pronounced to be unlawful, been addressed to 
himself, he should have cited the authorities of Rhode Island to show cause 
why the writ of error should not be allowed. The term of the Supreme Court 
was now too near at hand, to admit of making such citation returnable before 
the close of that term, and the application was made to that Court at Wash- 
ington early in December. 

It is impossible to describe the consternation which now reigned in the ranks 
of both divisions of the " Identified." Before the record was obtained, it was 
confidently and tauntingly said that it never would be obtained. Now, it was 
manifest that a serious movement for a writ of error was in due progress. 
Every cow-boy and scout of the Hunkers was put upon duty to watch the 
movements of the Dorr Liberation Society and their counsel, and make due re- 
port ; and the reports came so thick, and so fatal to their hopes, that the coun- 
tenances of the Hunkers, like those of the " Law and Orders," sank down to 
the brink of despair. Each dynasty (for both are sovereign and admit of noth- 
ing but subjects under them) was, by itself, tremendously alarmed, and this 
alarm acted and reacted upon both houses of the identities. And they had good 
reason to be alarmed. Both factions were conspirators. Both had conspired 
to produce the same result, the perpetual imprisonment of Dorr. By diflerent 
means ; but tending to the same end. The one by excluding counsel, and the 
other by threatening beforehand, that unless they were admitted, they would 
abandon the case. You shall not see Dorr, said the " Law and Order" Alge- 

* The prudential reasons were in part, that the magistrate had been represented by both 
'• Law and Order" Algerines, and Hunker Algerines, to be decidedly averse to having the 
case "go up." Burgess and his associates repeatedly stated that they ^7i<?m» he would not 
allow the writ of error. Another proof of the identity of the two dynasties of the Algerines. 



20 THE HUNKERS AND 

rines."" Then, as we told you before, we will abandon the case, and do nothing 
about the writ of error, replied the Hunker Identities. Both Divans kept their 
word to each other, as faithfully as Burgess kept his pledge to conceal Dorr's 
removal. Both were false to Dorr. Neither had occasion to exclaim, 
" A plague upon't ! when " Algerines " can't be true to each other." 
Both factions assailed the Dorr Liberation Society, with all the virulence which 
malice could engender, and both have their reward in disappointment and de- 
feat. 

Early in December, 1844, Mr. Treadwell, of counsel for the Society, took the 
papers to Washington, and on the 11th of that month, on the tenth day of the 
term, presented a motion with the record, and three affidavits, to the Supreme 
Court of the United States, for a writ of habeas corpus, to bring out Governor 
Dorr to Washington, and enable him to sign a petition for a writ of error ; or to 
allow the writ of error.* Shortly afterwards, the Court informed the Counsel 
of the Society that on Friday, the 20th of December, the day assigned for the 
consideration of motions, they would hear him in support of his motion. On 
that day the motion was argued by Mr. Treadwell. On Friday the 27th, Mr. 
Justice McLean delivered the opinion of the Court, overruling the motion. f 
The motion for the writ o? habeas corpus was denied, because, in the opinion of 
a majority of the Court, the act of the Congress of 1789 did not authorize them 
to bring out from confinement under a State process, civil or criminal, any per- 
son for any other purpose than to be examined as a witness. By this decision, 
if a person indicted for treason against the United States, should get some one 
to imprison him under process from any State, for a debt of five dollars, fictitious 
or real, no process from any authority of the United States could arrest him. J 

The motion for a writ of earor was denied, by a majority of the court, 
because the counsel did " not act under the authority of Dorr, but at the 
request of his friends." Neither of the counsel of the Dorr Liberation Society 
ever pretended to act under the authority of Governor Dorr. On the contrary, 
the affidavits in the case prove, that the reason why they acted for the Society, 

* An adequate description of the intense excitement which pervaded all parties in Rhode 
Island, upon the mere statement of the fact that this motion was before the Supreme Court 
of the United States, would exceed the space which has been allotted to this part of the pub- 
lication. The prominent men who claimed to lead the two parties were downhearted, sad, 
dismayed. The Hunkers no less than the Algerines. The numerous letters written from 
Rhode Island at this time, to persons in other States, abound with facts and incidents to 
prove this. Up to the time the motion was made, the opponents of Dorr in other States 
could not credit the fact that his Counsel v/ere excluded from him, even in prison. A mem- 
ber of the Senate, when told so by another Senator, replied that it was impossible. That 
such a thing was never heard of in a civilized country. But the affidavits submitted with 
the motion, prove the fact beyond controversy, and then men of all parties joined in con- 
demning the barbarous deed. It has often been stated, probably on good grounds, that the 
authorities of Rhode Island were advised by their friends and correspondents, that no one 
could justify them in this particular. That they mu-t give it up, and open the prison doors, 
or that the Counsel and Court would unquestionably find means to bring up the case with- 
out their consent, and against their consent. The inspectors yielded the point which they 
had often asserted they never would yield, and it has been said they went so far as to solicit 
the Counsel of Gov. Dorr, who had tamely submitted to their refusal, to renew his applica- 
tion to them for leave to visit him. A full development of the circumstances connected 
with this extraordinary somerset, may yet be forthcoming. Some interesting letters upon 
the subject, are known to be in existence. 

t Many of the newspapers have stated that this decision was declared by Mr. Justice Mc- 
Lean to be unanimous. The decision was not unanimous, and was not so declared by 
Judge McLean. No such intimation was put forth by any member of the Court. 

X This is not only a queer, but an alarming state of law. A pirate, a traitor, or a murderer, 
can skreen himself under imprisonment for a pretended debt of five dollars, and defy the 
power of the Union to arrest him ! No wonder the Court advised the Judiciary Committee 
of the Senate to amend the law. That committee reported a bill for the purpose, but it is 
believed that it was not acted upon, or at least not passed. 



ALGERINES mENTIFIED. 21 

or acted at all, was, because the authorities of Rhode Island had conspired 
against Dorr's right of appeal, and refused to give him an opportunity to see 
counsel, or employ any one to act for him. This was the point which the Dorr 
Liberation Society thought proper to contest with the authorities of Rhode 
Island, supported as the latter were substantially, by the Hunkers of the State 
Central Committee. The Society determined that the gates of the temple of 
justice, the Supreme Court of the United States, which the Algerines had closed 
upon Dorr, and vauntingly proclaimed that they had closed them upon him for 
ever, should be opened, and they were opened ! That Dorr should see counsel, 
and have liberty to apply for a writ of error, and so it teas, and speedili/. The 
Counsel of the Society never sought to see Governor Dorr, for any other pur- 
pose than so far to set him at liberty, as to give him an opportunity to employ 
whom he would, to carry up his case. If Dorr has not had that liberty ; if he 
has in any degree been deprived of it ; if by a conspiracy among the Pilates and 
Herods of the two divans of Algerines he has been under the necessity of em- 
ploying Burgess, who, as his own publications prove,* had abandoned Dorr's 
cause, and left him exposed to the atrocious cruelties of the Inspectors of the 
prison, it is not the fault of the Dorr Liberation Society. That Society, by its 
vigorous and persevering efforts in the cause of justice and humanity, brought to 
bear upon Dorr's jailors an influence which could no longer be resisted, and 
forced the conspirators to open the prison doors. When the father and mother 
of Gov. Dorr were, under the pressure of this influence, invited by the authori- 
ties to go into the prison and see their son, who, as the Algerines said, was 
deadf but now to his parents was alive again, the Dorr Liberation Society waited 
on them, and tendered to them their correspondence and papers, with liberty to 
take them into the prison, and show that son what had been done by that 
Society ; done spontaneously, in answer to his appeal to them as a part of the 
people of the country. The offer was not accepted. When Burgess had liberty 
to visit Gov. Dorr in prison, the use of the papers was tendered to him for the 
same purpose. His reply in eflect was, that he should like to examine the 
papers, and show such parts of them as he pleased, to Gov. Dorr ; but that he 
would not communicate to the Society any reply that Gov. Dorr might make 
upon the matter. 

The Society were grieved, but not disappointed, at the course which the 
parents of Gov. Dorr continued to pursue. Those parents, equally regardless 
of the wishes and character of their son, had continued to knock at the portals 
of the divan with their petitions, not for his justification, and the establishment 
of his innocence, but for a pardon as a criminal ! For a pardon, that would not 
restore to him his civil and social rights, but convert the whole State into a State 
Prison to him ; and leave every Algerine at liberty to put forth the finger at 
him, or cuff, kick, and spit upon him with impunity ! And this was all that 
the most bitter foes of Gov. Dorr among the Algerine authorities, sought to 
accomplish. The Hunkers, for the same reasons which influenced the authori- 
ties, strove to effect the same purpose. 

It is the character of Dorr, restored to his civil, social, and political rights, 
which these usurping divans, these conspiring identities dread. His integrity ; 
his intelligence ; his indomitable love of justice ; his experience ; his know- 
ledge of the character, wants, and desires of all classes of the people of Rhode 
Island, and above all his invincible devotion to the most liberal principles of 
free, republican government, founded as it can only be on the broad basis of the 

* There is good reason to believe, that one or more of the counsel of Governor Dorr were 
informed by the ardent friends of Dorr in other States, that their own publications were 
generally considered as evidence that they had abandoned his cause. 



22 THE HUNKERS AND ALGERINES IDENTIFIED. 

Right of Suffrage, unite in rendering him a dangerous rival to any candidate for 
public honors, which his opponents can bring into the political field. 

Dorr's case is now before the Supreme Court of the United States, where it 
will be revised, and doubtless the sentence will be reversed. In such case, if 
his health should not be greatly impaired, nor his mind shattered by the barbarous 
cruelties of the authorities of the prison, two-thirds of the people of Rhode Island 
would immediately rally around him, and make him their governor. This, both 
factions of the Algerines know full well, and hence they are equally anxious for 
his political degradation and destruction. 

The Dorr Liberation Society, having in response to Dorr's appeal put their 
hands to the fi-ee suffrage plough, will continue to guide it until they break up 
the rotten stumps and roots of the Algerines, and restore Dorr to liberty. They 
will then insist on his taking such a prominent part in the cultivation of the 
political field, as the then disenthralled people of Rhode Island may choose to 
assign him. This done, the Society, regardless alike of the flatteries of profess- 
ing friends, and the frowns and threats of open or secret foes, will publish an 
account of its efforts and doings ; of its attempts, successful or otherwise, for the 
relief of this suffering victim of oppression, and of the means, successful or un- 
successful, which have been resorted to by the Algerine Identities, to thwart 
the plans of the Society and turn it from its purposes. When Dorr shall be 
liberated and restored to the enjoyment of all his rights, the Society will be 
ready to participate in the burthens and benefits of a well-balanced constitutional 
government, equally with all their fellow citizens. Till then, they are resolved 
to retain their organization as a society, and strive to carry out " their proposed 
plan." Then and not before, will the Society as such cease from their labors. 



THE 



CASE OF GOVERIOR DORR 



MOTION FOR A WRIT OF HABEAS CORPUS FRO§ THE SUPREME COURT 

OF THE UNITED STATES. 
Washington, ss. 

Supreme Court, December Term. 

Tenth day, December 11, 1844.. 
In the case of the State of Rhode Island and Providence plantation.s, 

vs. 
Thomas Wilson Dorr, now confined in the State's prison at Providence, Rhode 

Island, aforesaid. 

Francis C. Treadwell, of counsel in behalf of said Dorr, moves the Court that 
a writ of habeas corpus issue forthwith to bring out the said Dorr to Wash- 
ington aforesaid, and give him an opportunity to sign a petition for a writ of 
error in his own behalf, and to prosecute the same, to the end that the whole 
record of the Supreme Court of the State of Rhode Island in said case may be 
certified in due form of law to the Supreme Court of the United States, and 
the errors therein be corrected. The facts in this case, briefly stated, are — 

First. That said Thomas W. Dorr was indicted for treason against the State 
of Rhode Island aforesaid, at Newport, at the term of the Supreme Court of 
Rhode Island, holden on the fourth Monday of August, 1842, and tried in pur- 
suance of said indictment, and a verdict of guilty having been rendered by the 
jury in the case, was, on the twenty-fifth day of June, 1844, sentenced to " be 
imprisoned in the State's prison at Providence, in the county of Providence, for 
the term of his natural life, and there kept at hard labor in separate confinement." 

Second. That a suspension of the sentence for one day was allowed by the 
Supreme Court of Rhode Island, for the purpose of preparing a bill of exceptions, 
" with a view to suing out a writ of error to the Supreme Court of the United 
States," and a bill of exceptions was then prepared, and makes a part of the 
record, at page 82. 

Third. That the Court refused to suspend the execution of the sentence, and 
to await the decision of the case by the Supreme Court of the United States 
upon a writ of error, although notified that the imprisonment of the defendant 
would disable him from prosecuting his defence. See Burke's report, page 
1047. 

Fourth. That the inspectors of the State's prison utterly refused to let said 
Thomas W. Dorr sign or see a petition for a writ of error as aforesaid. 

Fijth. That the Governor of the State of Rhode Island refuses, and, as he 
alleges, for want of power, to let Dorr sign or see such a petition. 

Sixth. That sundry citizens of Providence aforesaid have signed a petition 



24 EX PARTE DORR; 

to this honorable court for a writ of error, or for a writ of habeas corpus^ 
which petition is now presented with this motion. 

The documents, papers, and evidence herewith submitted, and prayed to be 
considered a part of this motion, consist — 

First. Of the petition of sundry citizens of Rhode Island, named in the sixth 
specification of facts aforesaid, marked. One. 

Second. Of the affidavit of Samuel Fessenden, Esq., marked Two, with 
the letter of Thomas M. Burgess, Esq., mayor of Providence, marked Three, 
annexed. The affidavit of John S. Eddy, Esq., marked Four, and the affi- 
davit of Francis C. Treadwell, marked Five, with the copy of an application of 
said Treadwell to the mayor of Providence, annexed, and marked A. 

Third. The record of the trial, indictment, and judgment aforesaid, certified 
by William Gilpin, clerk of said court. 

Fourth. The petition presented by Gen. Fessenden to Thomas M. Burgess, 
mayor of Providence, and returned by him with his letter, marked Six. 

Fifth. The report of thf select committee of the House of Representatives 
upon the affairs of Rhode Island, by Edmund Burke, Esq., chairman. 

The points relied upon for a reversal of the sentence are three, all of which 
the Supreme Court of the State of Rhode Island overruled. 

First. That the act of the State of Rhode Island for punishing treason is 
repugnant to the constitution and laws of the United States ; and that the crime 
of treason cannot be committed against a separate State, but against the United 
States. — See Record., p. 82, Burke'^s Report., p. 1021. 

Second. That said Dorr was governor of the State, duly elected, under the 
people's constitution — a republican constitution or form of government — and 
that he offered to prove these facts. — Record., p. 50, 51, 77. 

Third. That the whole record shows that if said Dorr levied war at all, it 
was against the United States, and cannot be inquired of by any State court. 

The authorities relied upon as giving jurisdiction of the case to this court, 
are — 

First. The third article of the constitution of the United States, which vests 
the power in this court. 

Second. The twenty-fifth section of the judiciary act of 1789, which pre- 
scribes the mode of its exercise by writ of error. 

The writ of habeas corpus in this case is, I apprehend, a writ of right, the 
privilege of which, under the constitution of the United States, cannot be 
suspended but in the two contingencies mentioned in the second clause of the 
ninth section of article first. The necessity of the writ of habeas corpus in this 
case arises because the Supreme Court of the State of Rhode Island and the 
inspectors of the State's prison at Providence have thrown impediments in the 
way of the exercise of the constitutional right of said Dorr " to have his defence 
examined by that tribunal whose province it is to construe the constitu ion and 
laws of the Union." — See opinion of the Supreme Court in Cohens and Vir- 
ginia., 6th Wheaton and od Starves Com. on Con.., p. 596. 

F. C. TREADWELL, 
Of counsel in behalf of said Dorr. 



SUPREME COURT U. S. 25 

I. 

PETITION OF J. C. DAVIS, J,' S. EDDY. AND FORTY-FOUR OTHERS. 

To the Chief Justice, and the Associate Justices of the Supreme Court of the 
United States, holden at Washington, being the present seat of the National 
Government, on the first Monday of December, in the year of our Lord, one 
thousand eight hundred and forty-four, — or to either of the Justices of the said 
court in either of the several circuits. 

Complain, and respectfully represent the undersigned, citizens of the 
State of Rhode Island and Providence Plantations, near friends of Thomas 
Wilson Dorr. 

That at the Term of the Supreme Judicial Court of the said State of Rhode 
Island, and Providence Plantations, holden at Newport, in and for the county 
of Newport in said State, on the fourth Monday of August, in the year of our 
Lord one thousand eight hundred and forty-two, an Indictment for the crime 
of Treason against the said State of Rhode Island and Providence Plantations, 
was found by the Grand Jurors of the said State of Rhode Island and Provi- 
dence Plantations, and in and for the body of the county of Newport, against 
the said Thomas Wilson Dorr, of the city of Providence, in the county of Provi- 
dence, Attorney and Counsellor at Law, in which Indictment the said Thomas 
Wilson Dorr is charged in four several and distinct counts, that he, being an 
inhabitant of and residing within the State of Rhode Island and Providence 
Plantations, and owing allegiance and fidelity to said State, did, on the several 
days and times set forth in the several places therein specified, wickedly, and 
traitorously, unmindful of his allegiance aforesaid, conspire to levy, and did 
actually levy, war against the State of Rhode Island and Providence Plantations. 
Which said indictment is made and has become a matter of record in said court, 
as by a copy thereof, herewith presented, and verified under the seal of said 
court, fully appears. And the undersigned citizens, as aforesaid, further com- 
plaining, say, that at an adjourned term of the aforesaid Supreme Court, begun 
and holden at Newport aforesaid, on the twenty-ninth day of February, in the 
year of our Lord one thousand eight hundred and forty-four, the said Thomas 
Wilson Dorr was brought into court, and arraigned on said indictment, and 
caused to plead thereto, and that afterwards such proceedings were had on said 
indictment, that at the March term of the Supreme Court of the State of Rhode 
Island and Providence Plantations, holden at Newport aforesaid, by adjourn- 
ment, on the twenty-sixth day of April, 1S44, a Jury was completed and em- 
pannelled in the way and manner as in the records of said court appears, for 
the trial of the said Thomas Wilson Dorr on said indictment ; and the under- 
signed further complain and allege that such further proceedings were had on 
said indictment, and the trial of Thomas Wilson Dorr, thereon, that on the 
seventh day of May, 1844, the Jury so empannelled as aforesaid, under the di- 
rection of said court in matters of law, returned a verdict of guilty against the said 
Thomas Wilson Dorr, which the said court ordered to be, and which was re- 
ceived and recorded ; and which said verdict has also become matter of record 
in said court. And the undersigned further complain and allege, that, not- 
withstanding all the said Thomas Wilson Dorr's complaints, objections, and 
remonstrances, made as well by the counsel of the said Thomas Wilson Dorr, 
as by said Thomas Wilson Dorr himself, the said Supreme Court, on the twenty- 
fifth day of June, one thousand eight hundred and forty-four, proceeded to, and 
did sentence the said Thomas Wilson Dorr to be imprisoned for the term of his 
natural life, in the State's Prison at Providence, in the county of Providence 
and State aforesaid, and there kept at hard labor in separate confinement, as by 
the full record of said Indictment, and the proceedings thereon, and the verdict 



26 EX PARTE DORR; 

of the Jury aforesaid, and the judgment and sentence of said Court, and a 
copy of which record, duly certified under the seal of said Court, and accom- 
panying this complaint, fully appears, and under which judgment and the sentence 
of said Court the said Thomas Wilson Dorr is now suffering imprisonment. 
And to which said rulings and directions in matters of law, the said Thomas 
Wilson Dorr, by his counsel on his behalf, offered and tendered a Bill of Excep- 
tions as by the record appears, and which herewith accompanies said Petition ; 
which said record of said judgment of said Court so as aforesaid, certified, and 
authenticated, is now remaining in said Court in full force, and is in no way 
annulled or reversed. 

And the undersigned further aver that in the record of said Indictment, and 
of the proceedings thereon, and of the judgment and sentence of said Supreme 
Court, manifest error hath intervened. And that said Indictment so as aforesaid 
found, and the proceedings had thereon, and the verdict of said Jury so found, 
and the judgment so rendered thereon, and the sentence so awarded thereon, 
against the said Thomas Wilson Dorr and the execution thereof so as aforesaid 
carried into effect upon his person, are in violation of, and opposed to, and sub- 
versive of the Constitution of the United States, are wholly erroneous in the 
following particulars : — 

First. It appears from the record aforesaid, that the said Supreme Court did 
rule and direct the Jury as the law by which they were by their oaths bound, 
that the treason charged in said Indictment, to wit, the levying of war 
against an individual State, might be committed against an individual State. 
Whereas, the said Thomas Wilson Dorr avers that the treason set forth in said 
indictment, and the overt acts therein charged, to wit, the levying of war upon and 
against the State of Rhode Island and Providence Plantations, is a levying of war 
against the United States, according to the true intent and meaning of the Con- 
stitution of the United States, and can only be committed against the United 
States, and can only be inquired of in the Circuit Court of the United States 
for the first circuit, on an indictment found by the Grand Jury of the United 
States, duly and legally summoned, empannelled and charged to inquire for 
the United States for said first circuit, against any person guilty of said crime, 
and can only be tried in said Circuit Court by a Jury duly empannelled and 
sworn to try the same ; and because any treason, by levying war against a State, 
and the offence thereby committed against the State, is merged in the treason 
committed against the United States. 

Secondly. Because the people who are citizens of a State have a right by 
the laws of nature to frame for themselves a government when that under 
which they live is found, on experiment, to be unequal and oppressive, — and 
under the Constitution of the United States, to alter, amend, or frame a Con- 
stitution of Government for themselves, provided only that it be Republican ; 
and because the said Thomas Wilson Dorr offered to prove by competent 
evidence, that a majority of the adult male citizens of the United States resident 
in the State of Rhode Island and Providence Plantations, had framed and 
adopted for the Government of said State, a Republican form of Government 
which had gone into operation, by the choice and qualification of said Thomas 
Wilson Dorr as Governor, and by the choice and qualification of other officers 
provided for by said Constitution, which proof the said Court rejected, and 
thereby violated the fourth section of the fourth article of the Constitution of 
the United States, which provides that the United States shall guarantee to 
every State in this Union, a Republican form of Government. 

Thirdly. Because it appears from the whole record, that if the said Thomas 
Wilson Dorr, wrongfully, and without any justifiable authority, levied war, it 
was a war against the United States only, and therefore that he could not. 



SUPREME COURT U. S. 27 

according to the Constitution of the United States, and without a violation there- 
of, he held amenable to be tried for said crime, by any State Court. 

Wherefore the aforesaid citizens of Rhode Island whose names are under- 
signed, pray that a writ of error in behalf of the said Thomas Wilson Dorr, 
may go to the Judges, or some of them, of the SupremeCourt of the State of 
Rhode Island and Providence Plantations, or that a writ of habeas corpus may 
issue forthwith to bring out the said Thomas Wilson Dorr, and give him an op- 
portunity to sign a petition for a writ of error on his own behalf, to the end 
that the whole record of said Indictment and trial and judgment, may be certi- 
fied in due form of law to the Supreme Court of the United States, and that the 
errors aforesaid therein, and which are set forth in this petition, may be cor- 
rected, and the judgment in the premises so rendered by the said Supreme 
Court of the said State of Rhode Island and Providence Plantations, may be 
reversed and annulled and held for naught, and the said Thomas Wilson Dorr 
be released from his said imprisonment so suffered in violation of the Constitu- 
tion of the United States. 

[Signed by] JOHN S. EDDY, 

JOHN C. DAVIS, 
and 44 others. 

II.— AFFIDAVIT OF SAMUEL FESSENDEN. 

T, Samuel Fessenden, of Portland, in the county of Cumberland and State of 
Maine, counsellor at law, on oath state : That I was employed by the friends of 
Thomas Wilson Dorr, confined in the State prison in Providence, Rhode Island, 
pursuant to the sentence of the Supreme Court of Rhode Island and Providence 
Plantations, on a conviction in said court on an indictment charging said Dorr 
of having committed the crime of treason by levying war against said State, as 
a counsellor at law, practising in the circuit court of the United States, to render 
my aid in carrying up the case of the said Thomas Wilson Dorr, on writ of 
error to the Supreme Court of the United States, for revision and correction of 
the errors as stated and set forth in the record of his, said Dorr's trial and con- 
viction ; that, in the discharge of my duty by virtue of said employment, I 
called on Mr. Justice Story of the Supreme Court of the United States, who 
informed me that, as an indispensable preliminary to the granting a writ of 
error, a petition signed by said Dorr must be presented, praying that a writ of 
error might be granted. 

I then drew up a petition — such as I judged to be suitable and proper for said 
Dorr to sign — and, in company with Francis C, Treadwell, Esq., presented 
said petition to Thomas M. Burgess, Esq., mayor of the city of Providence, 
and, by virtue of his office, chairman of the board of inspectors of the State's 
prison in Providence, where said Dorr is confined, with the request that said 
Dorr might have said petition placed in his hands for perusal, and with liberty 
to sign the same should he think proper. 

The said Burgess then informed me that he had no idea that said Dorr would 
be permitted to see or .sign said petition ; that he himself should be opposed to 
it; that it was, as he believed, the determination of the authorities of the State 
that said Dorr should have no opportunity to carry up his case by writ of error, 
and that they did not intend that there should be any interference on behalf of 
said Dorr for that end. With much persuasion, I induced the said Burgess, the 
mayor, to take said petition, and consult with the other members of the board 
of inspectors. He took the petition for that purpose, saying at the same time 
that he knew they would not permit it, and that he, as one of the board, should 
not consent to have said Dorr see or sign said petition. 

On this twentieth day of November, I received the annexed letter from said 



08 EX PARTE DORR; 

Burgess, with the petition which I handed to him ; and the sheets containing 
said petition I have marked with the initials of my name. 

SAMUEL FESSENDEN. 

United States of America, 
District of Maine. 
On this 20th of November, 1S44, personally appeared before me the above 
named Samuel Fessenden, and made oath to the truth of the facts stated in 
the above affidavit by him subscribed. 

ASHUR WARE, 
Judge of United States for the District of Maine. 

III. 

Providence, November 18, 1844. 
Gentlemen : — I have seen several of the inspectors of the State prison this 
afternoon, who agree with me, that we ought to take no action upon your 
request ; because it is so very similar in its character to one which the General 
Assembly, at their October session, virtually refused to grant. 

I enclose the papers, and remain, respectfully, your obedient servant, 

THOMAS M. BURGESS. 
To Messrs. Fessenden and Treadwell. 

[The petition referred to by General Fessenden, marked S. F., is the original 
of which the one above is, with very slight variation, a transcript.] 

IV.— AFFIDAVIT OF JOHN S. EDDY. 
I, John S. Eddy, of city and county of Providence, and State of Rhode Island, 
gentleman, on oath state, that on the twenty-fifth day of November, A. D. 
eighteen hundred and forty-four, in company with Francis C. Treadwell, Esq., 
I called upon James Fenner, Esq., Governor of the State of Rhode Island afore- 
said, at his residence in Providence aforesaid, when the said Treadwell pre- 
sented to said Governor Fenner a petition addressed to the Chief Justice and 
Associate Justices of the Supreme Court of the United States, or to either of 
said Justices in either of the circuits, praying that a writ of error may be 
granted in the case of the State of Rhode Island against Thomas Wilson Dorr, 
confined in the State's prison in Providence, Rhode Island, aforesaid, pursuant 
to the sentence of the Supreme Court of Rhode Island and Providence Planta- 
tions, on a conviction in said court, on an indictment charging said Dorr with 
having committed the crime of treason against the said State, and requested the 
said Governor Fenner to permit said Dorr to read said petition, and to sign the 
same, if he, the said Dorr, should desire to do so. That the said Governor 
Fenner replied to said Treadwell, that he, said Governor Fenner, had no power 
to hold intercourse with said Dorr, or with any other person confined in the 
State prison aforesaid, nor to permit any other person so to do. That by 
the laws of the State of Rhode Island aforesaid, the inspectors of said prison 
"Were the only persons who had power to permit such intercourse, or to allow 
any person to see any prisoner confined in said prison ; and the said Governor 
Fenner, thereupon, for the reasons above stated, refused to give permission for 
the said Dorr to sign or to see the petition aforesaid. 

JOHN S. EDDY. 
The State of Rhode Island and Providence Plantations, Providence county, ss. 
In Providence, this twenty-sixth day of November, A. D. eighteen hundred 
and forty-four. Subscribed and sworn to, by John S. Eddy. Before me, 

HENRY MARTIN, 

Notary Public. 



SUPREME COURT U. S. 29 

v.— AFFIDAVIT OF F. C. TREADWELL. 
I, Francis C. Treadwell, of Portland, in the county of Cumberland, and 
State of Maine, Counsellor at Law, on solemn affirmation say, that I have been 
and now am, employed by the friends of Thomas Wilson Dorr, confined in the 
State Prison in Providence, Rhode Island, pursuant to the sentence of the 
Supreme Court of Rhode Island and Providence Plantations, on a conviction 
in said Court on an indictment charging said Dorr with having committed the 
crime of Treason by levying war against said State, to render my aid in carry- 
ing up the case of the said Thomas Wilson Dorr, by writ of error to the Su- 
preme Court of the United States, for revision and correction of the errors as 
stated and set forth in the record of said Dorr's trial and conviction. That 
about the latter part of the month of July last past, in the discharo-e of my 
duty by virtue of said employment, I called on Walter S, Burgess, Esq., of 
Providence aforesaid, Counsellor at Law, and on the late Samuel Y. Atwell, 
Esq., of Glocester, Counsellor at Law, then at Providence, but since deceased, 
both of whom informed me, that in connection with George Turner, Esq., of 
Newport, in the State of Rhode Island aforesaid. Counsellor at Law, they, as 
Counsel for said Dorr, were about to make application to the Board of Inspec- 
tors of the State Prison, at Providence aforesaid, for liberty to consult with said 
Thomas Wilson Dorr, in the prison aforesaid, in relation to carrying the case 
aforesaid, by writ of error to the Supreme Court of the United States. That 
both said Burgess, and said Atwell, requested me to call on them again, and 
also on said Turner, and confer freely with them all upon the subject of car- 
rying the case of the said Dorr by writ of error to the Supreme Court of the 
United States as aforesaid, and that both said Burgess, and said Atwell, promised 
to let me know the result of their said application to the Inspectors of the 
Prison aforesaid, early, or immediately upon its communication to them ; and 
both said Burgess and said Atwell requested me not to take any legal proceed- 
ings, not even to get a copy of the Record aforesaid, until they should receive 
an answer from the inspectors of the prison aforesaid, and should publish a 
report of the Trials of the case aforesaid, which they then had in press for 
immediate publication. That in pursuance of the request, so made by the s&id 
Burgess, and the said Atwell, 1 called several times on the said Burgess, and 
conversed with him freely upon the case aforesaid ; and that also, in pursuance 
of the request made as aforesaid, I called several times at the American Hotel, 
in Providence aforesaid, the lodging-place of the said Atwell, and in answer to 
my inquiries for said Atwell, was told by the keeper of the said House, that 
said Atwell was in his room, too much indisposed to see company. And this 
affirmant further says, that on a certain day in the month of August last past, 
he met the said Turner, at the office of said Burgess, in Providence aforesaid, 
when said Turner requested this affirmant to call before eleven o'clock on the 
morning of that day, on said Atwell, at said American house, or hotel, and 
converse with said Atwell upon the case aforesaid, and upon the propriety of 
sueing out a writ of habeas corpus^ in a certain contingency — that on the same 
day 1 called at the Hotel aforesaid, and inquired of the keeper thereof for said 
Atwell, and was told by said keeper, that said Atwell immediately after parting 
with said Turner, at breakfast time that morning, had met with an unexpected 
opportunity to return to his residence in Glocester, and had departed thence 
some hours before, from which time to the day of his decease, as this affirmant 
is informed and believes, the said Atwell never returned to Providence afore- 
said. And this affirmant further says, that on or about the twenty-sixth day of 
August last past, the said Walter S. Burgess, accosted this affirmant in the 
street at Providence aforesaid, and then and there said, that he the said Burgess 
had received from the Inspectors of the State Prison aforesaid, an answer, de- 



30 EX PARTE DORR; 

nying the Counsel of said Dorr the liberty to consult with him upon the sub- 
ject of taking the case aforesaid, by writ of error to the Supreme Court of the 
United States, and that himself and said Atwell, and Turner, had in such case 
agreed to abandon the case, and without said Dorr's personal instructions, they, 
said Atwell, Turner and Burgess, would do nothing further in the matter, and 
that the inspectors aforesaid, had referred the request, or petition, to the Judges 
of the Supreme Court, and to the Legislature of the State, which said Burgess 
pronounced to be a rejection of the said petition, And the said Burgess then 
and there also stated, that he, said Burgess, had no idea of going to Washington 
with a writ of error, upon a case for a man, when he did not know whether 
the man wished to have the case go there or not. That it might take five 
years to get a decision upon the case, and that the carrying it up thence might 
operate to the prejudice of the said Dorr in obtaining a pardon from the Legis- 
lature of the State of Rhode Island aforesaid. And the said Burgess then 
and there further stated, that this affirmant could now carry up the case by 
writ of error as aforesaid, if he thought proper so to do ; that they, the said 
Burgess, Atwell and Turner, had before agreed to give up the case, in case the 
Algerine Inspectors of the State's Prison aforesaid, should refuse to let them, the 
said counsel, consult with the said Dorr ; and that all objections to the carrying 
up of said case by writ of error as aforesaid, by this affirmant, if he knew of 
any way to do it without first obtaining permission from the inspectors of the 
prison, or other authorities of Rhode Island aforesaid, on the part of said Bur- 
gess, Atwell, and Turner, were now removed, and the way all clear for the ac- 
tion of this affirmant in the premises. And this affirmant further says, that on 
the ninth day of September last past, by the request of many of the near 
friends of the said Thomas W. Dorr, he went to Portland in the State of 
Maine, aforesaid, and engaged the services of Samuel Fessenden, Esq., Coun- 
sellor at Law, in the carrying up by writ of error to the Supreme Court of the 
United States, the case of the said Dorr ; and on the twelfth day of Septem- 
ber last past, as appears by his minutes, then made, this affirmant went to 
Newport, in the State of Rhode Island aforesaid, to the office of the Clerk of 
the Supreme Court of Rhode Island aforesaid, and engaged the Clerk of said 
Court to make a copy of the record aforesaid, in the case of the said Dorr, 
and urged said Clerk to make the copy of said record speedily ; which said 
Clerk promised to do ; and this affirmant offered to pay said Clerk then in ad- 
vance, for the copy of said record ; which payment in advance said Clerk 
refused to receive ; and when three weeks afterwards this affirmant went from 
Providence to Newport aforesaid, for the said copy of said record, and the 
Clerk had not begun to make it out, and could not or would not say when he 
would either begin or finish the said copy of said record. And this affirmant 
further says, that in compliance with the advice of several of the friends of 
said Dorr, at Newport, and elsewhere, who feared that a copy of said record 
could not otherwise be obtained in time to be available at the then next term 
of the Supreme Court of the United States, he was under the necessity of 
employing, at an expense of twenty-five dollars, a man to go into the office of 
the said Clerk, of said Court, at Newport aforesaid, and make a copy of said 
record from many detached papers as they were handed him by said Clerk, 
which caused a delay as nearly as this affirmant can now recollect, of more 
than three weeks longer, and several inconvenient and expensive journeys to 
Newport ; and still the said Clerk charged and received the official price for 
making a copy of said record. 

And this affirmant further says, that on the aforesaid twelfth of September 
last past, he saw at Newport aforesaid, the said George Turner, at his office 
which is contiguous to the office of William Gilpin, the Clerk of the Court 



SUPREME COURT U. S. 31 

aforesaid, and told said Turner that he, said affirmant, had come lo the office of 
the Clerk of said Court, to obtain a copy of said record, for the purpose of 
carrying up the case of said Dorr by writ of error to the Supreme Court of 
the United States. That said Turner made no objection thereto, but then and 
there said, that said Atwell, Burgess and himself, had previously agreed that if 
the inspectors of the said prison should refuse to let them consult personally, 
with said Dorr, they, the said counsel, would give up the case of the said Dorr, 
and make no further attempt to carry up the said case by writ of error to the 
Supreme Court of the United States ; and the said George Turner then and 
there offered his services, and told this affirmant he would freely yield them to 
the Clerk of the Court aforesaid, in preparing or arranging the papers from 
which the record was to be made out, and would assist said Clerk, and aid 
him in making, as speedily as possible, a copy of the said record. 

And this affirmant further says, that in the month of August last past, 
when the application of the said Burgess and Turner, for permission to consult 
with said Dorr, w^as pending before the inspectors of the prison aforesaid, that 
he, this affirmant, met with one of said inspectors, by the name of Cranston, 
whose first name he believes is Barzilla, but of that is not certain, when said 
Cranston, at Providence aforesaid, told this affirmant that the application of said 
Burgess and Turner was not definitely acted upon by said inspectors ; that he, 
said Cranston, was not in favor of granting the permission asked for in said ap- 
plication, and he believed it ought to be, and would be, refused ; and said if I 
should make a similar application, it would also, without doubt, be refused ; 
and the said Cranston then asked me why I did not arm myself, and force my 
way into the prison. The said Cranston further said, that he did not believe 
the case of said Dorr could be taken by any means, before the Supreme Court 
of the United States, without the consent of the authorities of Rhode Island, 
in permitting counsel to consult with said Dorr; and that consent he believed 
could never be had. That he was opposed to it, and he believed both the 
Supreme Court, and the Legislature, were also opposed to it. 

And this affirmant further says, that some days after the interview with said 
Cranston above named, he met said Cranston at Providence aforesaid, when 
said Cranston told this affirmant that the Inspectors of the prison aforesaid had 
refused to permit said Burgess and Turner to consult with said Dorr, or hold 
any communication with him whatever. That they, said counsel, or myself, 
might carry up the case of said Dorr to the Supreme Court of the United 
States if we could. That he did not believe we could do it without the con- 
sent of the authorities of Rhode Island, and that consent he felt assured we 
should never be able to obtain. 

And this affirmant further says, that on or about the eleventh day of No- 
vember last past, in company of Henry Lord of Providence aforesaid, this 
affirmant called upon Thomas M. Burgess, Esq., mayor of the city of Provi- 
dence, and by the hand of said Henry Lord, presented to said Burgess, mayor 
of Providence, aforesaid, a written request for permission for Samuel Fessen- 
den, Esq., and myself, to visit said Dorr in said prison, and confer with him in 
all matters needful for carrying his case before the Supreme Court of the 
United States ; a copy of which paper, with a copy of the certificate of said 
Lord, annexed thereto, marked A, is hereunto annexed. And this affirmant 
further says, that said Thomas M. Burgess stated that he was the chairman of 
the inspectors of the State Prison aforesaid, that the Board would not have a 
regular meeting until January next ; after the next meeting of the Legislature 
of the State ; that the inspectors would, beyond question, refuse the applica- 
tion unless the Judges of the Supreme Court of Rhode Island should certify 
that the interview was necessary. That they, the inspectors aforesaid, had 



32 EX PARTE DORR; 

done so upon the application of Messrs. Burgess and Turner, and would doubt- 
less do so now in this case. That he would show the application to some of 
the members of the Board, but he had no doubt of their concurrence with him in 
refusing to grant the interview applied for. And this affirmant further says, 
that on the eleventh day of November last, he received from the said Burgess, 
mayor of Providence aforesaid, a permit to visit the State Prison aforesaid, and 
in company with Henry Lord, went there and saw the prisoners at work, ap- 
parently painting fans. That said prisoners were sitting with their backs" 
towards the spectators, who, looking through an iron grating, could not see 
the faces of the prisoners. That farthest off from the grating aforesaid, this 
affirmant saw a person sitting at work in an arm-chair, whom, from the color 
of his hair and the general appearance of the back part of his head and shoul- 
ders, this affirmant believes to have been the said Thomas Wilson Dorr, but 
the distance was so great, probably twenty yards or more, that this affirmant 
cannot, from his own observation, be certain of the identity of said Dorr. 
This affirmant further states, that a keeper is stationed in the room with the 
prisoners, facing the latter, so that, at a glance, he can see all their motions ; 
and that the regulations of the prison aforesaid, forbade a prisoner to speak to 
a spectator, or to a fellow-prisoner, under penalty of being deprived of food and 
water for twenty-four hours, or of corporal punishment. 

And this affirmant further says, that on Monday, the eighteenth day of No- 
vember last past, in company with Samuel Fessenden, Esq., and Walter S. 
Burgess, Esq., he called upon Thomas M. Burgess, Esq., mayor of the City 
of Providence aforesaid, at the office of the mayor, when said Thomas M. 
Burgess, stated that the Inspectors of the State Prison of whom he is chair- 
man, had decided to refuse permission to Gen. Fessenden and this affirmant as 
Counsel, to see or confer with said Thomas W. Dorr. And this affirmant fur- 
ther says, that in addition to the facts stated, in the affidavit of the said Samuel 
Fessenden, Esq., the said Thomas M. Burgess, mayor of Providence aforesaid, 
asserted at the interview last named, that the said Thomas Wilson Dorr could 
come out of prison if he had a mind to do so, by asking the Legislature of the 
State of Rhode Island to pardon him. That said Dorr had been told so ; and 
he, the said Thomas M. Burgess, himself, had so told the said Dorr ; that the 
" Law and Order party," and the Legislature, were desirous that said Dorr 
should be liberated, and that if he would petition for a pardon, it would be 
granted without even a reference of the petition. The said Thomas M. Bur- 
gess further stated, that he had no doubt it would be so, from what he had 
heard them, the members of the Legislature of Rhode Island, and the "Law 
and Order party," say repeatedly. 

FRANCIS C. TREADWELL. 

Affirmed before Wm. Thos. Carroll, Clerk of the Supreme Court of the 
United States. 

(A.) 

State of Rhode Island, &c., 

vs. 

Thomas W. Dorr. 

Providence, Nov. 11th, 1844. 

Sir : — Having been appointed by certain citizens of Rhode Island to carry 
the above entitled case by writ of error to the Supreme Court of the United 
States, for the purpose of having the defence of the defendant " examined by 
that tribunal, whose province it is to construe the Constitution and Laws of the 
Union," and to enable him the more effectually to assert his " Constitutional 
right," thereto, I deem it my duty to request of the Inspectors of the State 
Prison, through yourself, as one of them, permission for myself and for my 



SUPREME COURT U. S. 



33 



associate Counsel, Samuel Fessenden, Esq., of Portland, in the State of 
Maine, Counsellor at Law, to visit the defendant in the State Prison, and con- 
fer with him in all matters needful for perfectincr his defence aforesaid 

[Signed] FRANCIS C. TREADWELL, 
Counsel for certain citizens of Rhode Island. 
Thomas M. Burgess, Esq., Mayor of the City of Providence. 

I certify that the above is a true copy of the original presented by me in 
presence of F. C. Treadwell, Esq., to Thomas M. Burgess, Esq., Chairman of 
Prison Inspectors, Nov. 11th, 1844. 

[Signed] HENRY LORD. :; 

Argument of Counsel in support of the motion. 

Mr. Treadwell, in support of the Motion, referred to the public laws of Rhode 
Island, pages 54, 57, to show that the Supreme Court is the highest court of law in 
that State, and produced a transcript of the Record of the Supreme Court of the 
State of Rhode Island, duly authenticated, to substantiate the first and second facts 
stated in the motion, to wit, that Thomas VV. Dorr was indicted for treason ao-ainst 
the State of Rhode Island, tried, convicted, and sentenced for life to hard labor in 
the State prison, and that a suspension of the sentence for one day only was 
allowed to prepare a bill of exceptions for a writ of error. To prove the third 
fact, to wit, that the Court refused to suspend the execution of the sentence 
and await the decision of the case by the Supreme Court of the United States 
upon a writ of error. Burke's report, page 1047, was cited. The three affidavits 
given above were read, to prove the fourth and fifth facts, stated in the motion, 
to wit, that the inspectors of the prison and the Governor of the State refused to 
let said Dorr sign or see a petition for a writ of error, and other oppressive 
acts of the authorities of Rhode Island. The petition of sundry citizens of 
Providence, Rhode Island, was read, praying for a writ of error, or a writ oi 
habeas corpus, to bring out said Dorr, and give him an opportunity to sign a peti- 
tion for a writ of error. 

This case, the counsel contended, was one in which jurisdiction in the appel- 
late form clearly is vested in this court. Although it is a case between a State 
and one of its citizens, it is a case arising under the Constitution and laM's of the 
United States, because they are involved in it. The third article of the Consti- 
tution was referred to, conferring upon this court limited original, but very exten- 
sive appellate jurisdiction, " with such exceptions, and under such regulations as 
the Congress shall make." This is not one of the excepted cases. On the con^ 
trary, it is one of the cases enumerated and provided for in the 25th section of the 
act of Congress of Sept. 24th, 17S9 ; an actwhich prescribes the mode, and regu- 
lates the manner in which appellate jurisdiction shall be exercised by this court. 

The judgment against Dorr in this case is a final judgment in a suit in the 
highest court of law in the State of Rhode Island, in which a decision could 
be had. The validity of the act of the State of Rhode Island relative to treason, 
under which Dorr was indicted, was drawn in question on account of its repug- 
nance to the Constitution and laws of the United States, and the decision of the 
Supreme Court of Rhode Island was in favor of the validity of that act. The 
construction of the third section of the third article of the Constitution of the 
United States relative to treason, and that of the fourth section of the fourth ar- 
ticle, relative to a republican form of government, were drawn in question ; and 
in both cases the decision of the Supreme Court of Rhode Island was " ao-ainst 
the title, right, privilege or exemption, specially set up or claimed" by the 
defendant under those clauses of the Constitution. | Under circumstances like 
these, the act provides that the judgment " may be re-e.xamiried and reversed, 
3 



34 EX PARTE DORR; 

or affirmed in the Supreme Court of the United States, upon a writ of error, the 
citation being signed by the " chief justice, or judge, or chancellor of the court 
rendering or passing the judgment or decree complained of, by a justice of the 
Supreme Court of the United States, in the same manner, and under the same 
regulations, and the writ shall have the same effect as if the judgment or decree 
complained of had been rendered or passed in a circuit court, and the proceed- 
ino- upon the reversal shall also be the same, except that the Supreme Court, 
instead of remanding the cause for a final decision, as before provided, may, at 
their discretion, if the cause shall have been once remanded before, proceed to 
a final decision of the same, and award execution. But no other error shall be 
assio-ned or regarded as a ground of reversal in any such case as aforesaid, than 
such as appears on the face of the record, and immediately respects the before 
mentioned questions of validity or construction of the said Constitution, trea- 
ties, statutes, commissions, or authorities, in dispute." 

This court is not deprived of its appellate jurisdiction because a State is a 
party to the suit. Although an individual cannot commence or prosecute a 
suit aoainst a State, it does not follow that an individual may not defend himself 
against a suit commenced or prosecuted by a State, whether the action be of a 
civil.or criminal character. A State, in the prosecution of suits against individ- 
uals, has no privilege to overleap the Constitution and laws of the United States. 
They are as binding upon the State, as upon individuals ; as binding upon State 
courts, as upon courts of the United States. When, in the progress of the case of 
a State against an individual, a State court shall disregard the Constitution or laws 
of the United States or the rights of an individual under them, the individual 
has the right to make his exceptions, and put them upon the record, and then to 
call upon the court to send an authenticated transcript of such record to this tri- 
bunal for revision. A writ of error in such a case, it is contended, is a writ of 
rio'ht, which, upon due application, neither a State court, nor this court, can, with 
propriety, refuse to allow. This position is manifestly in accordance with the 
grant of appellate power in the third article of the Constitution, and with the ju- 
diciary act of 17S9, before referred to. 

In the well known case of Cohens v. Virginia* tliis interpretation of the 
grant of appellate power to this court, was explicitly laid down by Mr. Chief 
Justice Marshall as the judgment of the court. This court is not divested of 
its appellate power by the character of the parties to the suit ; by the circum- 
stance that the plaintiff is a State. On the contrary, its appellate jurisdiction 
arises from the character of the case, as developed in the course of the suit. 
From the fact in the present case, that a defence set up under certain parts of 
the Constitution of the United States has been overruled, and an act of a State 
deemed by the defendant to be repugnant to the Constitution, has been held to 
be valid by the State Court. These questions of validity and construction ap- 
pear distinctly upon the face of the record, and manifestly respect the questions 
of construction in dispute. 

If a case of jurisdiction shall be made out, will this court have any discre- 
tionary power to pass it by, and decline the exercise of jurisdiction ? No axi- 
om would seem to be more evident, than that the court have no such election. 
No man could say that he had a right to appeal to a court of justice in any 
case, if it were optional with the court whether to hear the case or not. A 
right of appeal includes the right to be heard. In the case of Cohens v. Vir- 
ginia, before referred to, the court treat this question as a self-evident truth, 
and in a manner equally satisfactory and instructive. They say, " But sup- 
pose a State to institute proceedings against an individual, which depended on 
the validity of an act emitting bills of credit : suppose a State to prosecute one 
* 3 Story's Com.oa Cob., 578, 580. 



SUPREME COURT U. S. 3$ 

of its citizens for refusing paper money, who should plead the Constitution in 
bar of such prosecution. If his plea should be overruled, and judgment render- 
ed against him, his case would resemble this ; and, unless the jurisdiction of 
this court might be exercised over it, the Constitution would be violated, and 
the injured party be unable to bring his case before that tribunal, to which the 
people of the United States have assigned all such cases. It is most true, that 
this court will not take jurisdiction, if it should not ; but it is equally true, that 
it must take jurisdiction, if it should. The judiciary cannot, as the legislature 
may, avoid a measure, because it approaches the confines of the Constitution. 
We cannot pass it by, because it is doubtful. With whatever doubts, with 
whatever ditficulties a case may be attended, we must decide it if it be brought 
before us. We have no more right to decline the exercise of jurisdiction, 
which is given, than to usurp that which is not given. The one or the other 
would be treason to the Constitution. Questions may occur which we would 
gladly avoid; but we cannot avoid them. All we can do is, to exercise our 
best judgment, and conscientiously to perform our duty. In doing this, on the 
present occasion, we find this tribunal invested with appellate jurisdiction in all 
cases arising under the Constitution and laws of the United States. We find 
no exception to this grant, and we cannot insert one." 

" We think, then, that as the Constitution originally stood, the appellate 
jurisdiction of this court, in all cases arising under the Constitution, laws, or 
treaties of the United States, was not arrested by the circumstance that a State 
was a party." — 3 Story''s Com. on Con., pp. 588, 589, 590. 

The eleventh amendment of the Constitution provides, that, " The judicial 
power of the United States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the States by citizens of 
another State, or by citizens or subjects of any foreign state." 

This amendment, sweeping as it is against the power of an individual to 
comvience or prosecute a suit against a State, does not deprive an individual of 
his right of defence against a suit commenced or prosecuted by a State against 
himself. This right remains in all its length and breadth, unaffected by this 
amendment. 

" If a suit, brought in one court, and carried by legal process to a supervis- 
ing court, be a continuation of the same suit, then this suit is not commenced 
nor prosecuted against a State. It is clearly in its commencement, the suit of 
a State against an individual, which suit is transferred to this court, not for the 
purpose of asserting any claim against the State, but for the purpose of assert- 
ing a constitutional defence against a claim made by a State." — Cohens v. Vir- 
ginia, 3 Ston/s Com., .594. 

" Under the judiciary act, the effect of a writ of error is simply to bring the 
record into court, and submit tiie judgment of the inferior tribunal to re-exami- 
nation. It does not in any manner act upon the parties ; it acts only on the 
record. It removes the record into the supervising tribunal. Where, then, a 
State obtains a judgment against an individual, and the court, rendering such 
judgment, overrules a defence set up under the Constitution or laws of the 
United States, the transfer of this record into the Supreme Court, for the sole 
purpose of inquiring whether the judgment violates the Constitution or laws of 
the United States, can, with no propriety, we think, be denominated a suit 
commenced or prosecuted against the State whose judgment is so far re-exa- 
mined." — lb., pp. 595. 

" The mode of removal is form and not substance. Whether it be by writ 
of error or appeal, no claim is asserted, no demand is made by the original de- 
fendant. He only asserts the constitutional right to liave his defence examined 



36 EX PARTE DORR; 

by that tribunal, whose province it is to construe the Constitution and laws of 
the Union. 

" The only part of the proceeding, which is in any manner personal, is the 
citation. And what is the citation ? It is simply notice to the opposite party, 
that the record is transferred into another Court, where he may appear, or de- 
cline to appear, as his judgment or inclination may determine. As the party 
who has obtained a judgment is out of Court, and may, therefore, not know that 
his cause is removed, common justice requires that notice of the fact should 
be given him. But this notice is not a suit, nor has it the effect of process. 
If the party does not choose to appear, he cannot be brought into Court, 
nor is his failure to appear considered as a default. Judgment cannot be 
given against him for his non-appearance ; but the judgment is to be re-ex- 
amined and reversed, or affirmed, in like manner, as if the party had ap- 
peared, and argued his cause. 

" The point of view, in which this writ of error, with its citation, has 
been considered uniformly in the Courts of the Union, has been well illus- 
trated by a reference to the course of this Court in suits instituted by the 
United States. The universally received opinion is, that no suit can be 
commenced or prosecuted against the United States ; that the judiciary act 
<ioes not authorize such suits. Yet writs of error, accompanied with cita- 
tions, have uniformly issued for the 'removal of judgments in favor of the 
United States into a Superior Court, where they have, like those in favor 
of an individual, been re-examined, and affirmed, or reversed. It has never 
been suggested, that such writ of error was a suit against the United States, 
and, therefore, not within the jurisdiction of the appellate Court. It is, then, 
the opinion of the Court, that the defendant who removes a judgment, ren- 
dered against him by a State Court, into~this'' Court, for the purpose of re- 
examining the question, whether^tliat judgment, be in violation of the Con- 
stitution and laws of the United States, does not commence or prosecute a 
suit against a State v/hatever may be its opinion, where the effect of the 
writ may be to restore the party to the possession of a thing which he de- 
mands."— 76., 596, 597. 

The opinion of the Supreme Court in the case of Martin v. Hunter, 1 Wlieat. 
it., 304, abounds with instruction to the same effect, if it be not more point- 
edly applicable to the case under consideration. The whole case shows con- 
clusively that the appellate jurisdiction of the Court extends to cases in the State 
Courts, as well as to those of the United States. A few passages will be cited. 
" As, then, by the terms of the Constitution, the appellate jurisdiction is not 
limited, as to the Supreme Court, and as to this Court it may be exercised in 
all other cases, than those of which it has original cognizance, what is 
there to restrain its exercise over State tribunals" in the enumerated cases ? 

" The appellate power is not limited by the terms of the third article to any 
particular Courts. The words are, ' the judicial power (which includes appel- 
late power) shall extend to all cases,'' &c., and 'in all other cases before 
mentioned, the Supreme Court shall have appellate jurisdiction.' It is the 
case then, and not the Court, that gives the jurisdiction. If the judicial power 
extends to the case, it will be in vain to search in the letter of the Constitution 
for any qualification, as to the tribunal, where it depends." — 3 Story''s Com., 599. 
" If some of these cases might be entertained by State tribunals, and no ap- 
pellate jurisdiction, as to them, should exist, then the appellate power would^not 
extend to all, but to some cases." — lb., 599. 

" But it is plain, that the framers of the Constitution did contemplate, that 
cases within the judicial cognizance of the United States not only might, but 
would arise ii>^the State Courts in the exercise of their ordinary jurisdiction. 



SUPREME COURT U. S. 37 

With this view, the sixth article declares, that ' this Constitution, and the laws 
of the .United States, which shall he made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the United wStates, shall 
be the supreme law of the land, and the judges, in every State, shall be bound 
thereby, anything, in the Constitution or hiws of any State, to the contrary not- 
withstanding.' It is obvious that this obligation is imperative upon the State 
judges in their' official, and not merely in their private capacities. From the 
very nature of their judicial duties, they would be called upon to pronounce 
the law, applicable to the case in judgment. They were not to decide, 
merely according to the laws, or Constitution of the State, but according to 
the Constitution, laws, and treaties of the United States, — ' the supreme law of 
the land.'"— i6., 601. 

" It has been argued, that such an appellate jurisdiction over State Courts 
is inconsistent with the genius of our governments, and the spirit of the Con- 
stitution. That the latter was never designed to act upon State sovereign- 
ties, but only upon the people ; and that, if the power exists, it will materially 
impair the sovereignty of the Skates, and the independence of their Courts. 
We cannot yield to the force of this reasoning ; it assumes principles which 
we cannot admit, and draws conclusions to which we do not yield our assent. 
—lb., 603. 

" It is a mistake that the Constitution was not designed to operate upon 
States in their corporate capacities. It is crowded with provisions, which 
restrain or annul the sovereignty of the States, in some of the highest branches 
of their prerogatives. — Ih., 603. 

" The Courts of the United States can, without question, revise the pro- 
ceedings of the executive and legislative authorities of the States, and, if 
they are found to be contrary to the Constitution, may declare them to be of no 
legal validity. Surely, the exercise of the same right over judicial tribunals 
is not a higher, or more dangerous act of sovereign power. — lb., 604. 

" It is manifest, that the Constitution has proceeded upon a theory of its 
own, and given and withheld powers according to the judgment of the Ameri- 
can people, by whom it was adopted. We can only construe its powers, and 
cannot inquire into the policy, or principles, which induced the grant of them. 
The Constitution has presumed (whether rightly or wrongly, we do not inquire), 
that Slate attachments, State prejudices, State jealousies, and State interests, 
might sometimes obstruct, or control, or be supposed to obstruct, or control, the 
regular administration of justice. — lb., 007. 

" There is an additional consideration, which is entitled to great weight. 
The Constitution of the United States was designed for the common and equal 
benefit of all the people of the United States. The judicial power was granted 
for the same benign and salutary purposes. It was not to be exerciscrd exclu- 
sively for the benefit of parties, who might be plaintiffs, and would elect the 
national forum ; but also for the protection of defendants, who might be entitled 
to try their rights, or assert their privileges, before the same forum. Yet, if the 
construction contended for be correct, it will follow, that, as the plaintiff may 
always elect the State Courts, the defendant may be deprived of all the securi- 
ty, which the Constitution intended in aid of his rights. Such a state of things 
can, in no respect, be considered as giving equal rights. To obviate this 
difficulty, we are referred to the power, which it is admitted, Congress possess, 
to remove suits from State Courts to the National Courts ; and this forms the 
second ground upon which the argument we are considering has been attempted 
to be su.stained. — lb., 607, 608. 

" A. writ of error is, indeed, but a process, which removes the record of one 
Court to the possession of another Court, and enables the latter to inspect the 



38 EX PARTE DORR; 

proceedings, and give such judgment, as its own opinion of the law and justice 
of the case may warrant. There is nothing in the nature of the process which 
prohibits it from being apphed by the Legislature to interlocutory, as well as 
final judgments. And if the right of removal from State Courts exist before 
judgment, because it is included in the appellate power, it must, for the same 
reason, exist after judgment. — 76., 609, 610. 

" The remedy, too, of removal of suits would be utterly inadequate to the pur- 
poses of the Constitution, if it could act only on the parties, and not upon the 
State Courts. In respect to criminal prosecutions, the difficultyseems admitted 
to be insurmountable ; and in respect to civil suits, there would, in many cases, 
be rights without corresponding remedies. If State Courts should deny the 
Constitutionality of the authority to remove suits from their cognizance, in what 
manner could they be compelled to relinquish the jurisdiction .'' In respect to 
criminal cases, there would at once be an end of all control ; and the State de- 
cisions would be paramount to the Constitution. And though, in civil suits, the 
Courts of the United States might act upon the parties, yet the State Courts 
might act in the same way ; and this conflict of jurisdictions would not only 
jeopard private rights, but bring into imminent peril the public interests. On 
the whole, the Court are of opinion, that the appellate power of the United 
States does extend to cases pending in the State Courts ; and that the 25th sec- 
tion of the judiciary act, which authorizes the exercise of this jurisdiction in the 
specified cases, by a writ of error, is supported by the letter and spirit of the Con- 
stitution. We find no clause in that instrument, which limits this power; and 
we dare not interpose a limitation, where the people have not been disposed to 
create one." — 76., 610. 611. 

The Court, in support of these strong positions, appeals to three historical 
facts, the latter of which, with a single remark of the Court, closes their deci- 
sion of this immensely important case. 

" It is an historical fact, that the Supreme Court of the United Spates have, 
from time to time, sustained this appellate jurisdiction, in a great variety of 
cases, brought from the tribunals of many of the most important States in the 
Union ; and that no State tribunal has ever breathed a judicial doubt on the 
subject, or declined to obey the mandate of the Supreme Court, until the present 
occasion. This weight of contemporaneous exposition by all parties, this acqui- 
escence of enlightened State Courts, and these judicial decisions of the Supreme 
Court, through so long a period, do, as we think, place the doctrine upon a 
foundation of authority, which cannot be shaken, without delivering over the 
subject to perpetual and irremediable doubts." — 76., 611, 612. 

The character of the case of Mr. Dorr, as it stands upon the record here pre- 
sented, appears to be as free from ambiguity, as are the Constitution, law, and 
judicial decisions to which such liberal reference has been made. The indict- 
ment charges Thomas W. Dorr with having committed the crime of treason 
against the State of Rhode Island ; with certain acts of hostility against that 
State, in violation of a statute of its Legislature. The defence set up, asserts 
that the statute in question is repugnant to the Constitution of the United 
States ; that the acts in question were not acts of hostility to the State, but on 
the contrary, were acts of duty to the State, done and performed by said Thomas 
W. Dorr as the Governor thereof, having been duly elected to that office by 
the people of the State acting under a valid Constitution and a Republican 
form of government ; and that the acts of said Thomas W. Dorr, if they amount- 
ed to treason at all, were treason against the United States, and could not be 
inquired of in any State Court. The record proves that the whole defence was 
overruled by the Supreme Court of the State of Rhode Island. That Court 
held, that the crime of treason might be committed against the State, and that 



SUPREME COURT U. S. 39 

the statute of the State in relation to treason was valid ; and refused to permit 
the defendant to prove, or give evidence tending to prove, the validity of the 
Constitution under which he claimed to have acted. 

Here, it is contended, is a direct issue on constitutional grounds. The court has 
overruled one ground of defence, and refused to receive evidence in support of an- 
other. The jury, under the charge of the court, have found a verdict of guilty, and 
the court have sentenced the defendant to confinement for life in the State Prison. 
The defendant, sensible that injustice had been done him by the court, in overrul- 
ing his defence, employed all the means in his power to command, to prepare his 
case for revision by this tribunal. Of this fact, the record exhibits conclusive evi- 
dence. Why then, it may be asked, does he not, under his own hand, petition this 
court for a writ of error, to bring before it the record of his trial and sentence .'' The 
affidavits which have been read give the reply. He is not permitted to sign or 
see a petition. He has signified his desire to bring his case before this court, 
in the only way or manner left open to him, by placing his intentions upon the 
record. He seems to have anticipated a surprise, and it has been sprung upon 
him, for he was hurried to the State Prison without allowing him time to have 
his application for a writ of error prepared, or even to consult with his counsel 
upon the subject. Harsh and anomalous as this act was, it appears to have 
been but the prelude to a series of oppressive measures, all conspiring to de- 
prive the defendant of his right to a revision of his defence by this court. 
*• By a law of the State (p. 414, Pitb. Laws'R. /.), the control of the State 
Prison is vested in a board of seven inspectors, appointed annually by the Legis- 
lature. The act comprises thirty-five sections which, generally, are so many 
rules and regulations for the government of the prison. One section authorizes 
the inspectors to make rules and regulations, " provided the same are not incon- 
sistent with law.'''' Many of the rules are humane. They require that one of 
the inspectors " shall, at least once in every week, visit each prisoner, and in the 
absence of the warden and under-keepers, examine into his situation, hear any 
complaints that he may make, and see that the rules and regulations of the prison 
be strictly observed ; they shall keep a particular record of all their meetings 
and proceedings, of their weekly visits, and complaints made to them by prison- 
ers, whether well or ill-founded. The inspectors may provide for the comfort 
of the prisoners, by admitting such communication to and from their friends and 
among themselves, and such books and other articles as they may deem expe- 
dient." The inspectors shall appoint the warden, who shall appoint under- 
keepers, keep a journal, in which, among other things, he shall enter " all 
complaints that are made to him by the convicts ;'" all punishments, and the 
visits of the inspectors and physicians, and " see that the rules of the prison are 
strictly obeyed." 

" Sec. 2S. The governor and lieutenant governor of the State, the speaker 
of the House of Representatives, the secretary of State, the attorney general, 
and the justices of the Supreme Court shall, ex-officio, be official visitors of the 
prison." 

" Sec. 29. No person not an official visitor, shall be allowed to vi.sit the 
prison, without a written permit from one of the inspectors ; nor shall any per- 
son other than an official visitor have any conversation or communication with 
any convict, except as provided for in the general rules established for the 
prison. This rule may be dispensed with in flivor of any person visiting the 
prison from without the State, for the purposes of general information, by a 
written permit from two inspectors." 

" Sec. 35. All breaches of this act shall be punished by indictment." 

The Court will perceive that there is nothing in these prison rules to prevent 
a man from seeing his counsel, and petitioning for a writ of error. This is his 



40 EX PARTE DORR; 

right, in prison, or out of prison. This is the law of the land, and, if that would 
make the case any stronger, the laws of the land are recognized by these prison 
laws. The inspectors are authorized to make rules— provided the same are not 
inconsistent with law. The prisoners, although by a fiction of law, not a reality, 
called civilly dead, still have rights. They have the right to complain, and the 
officers of the prison are bound to make record of these complaints, and redress 
such as may be well founded. Nor are these the only means of protecting the 
prisoners from oppression, provided by the laws of Rhode Island. The execu- 
tive, and certain other officers of the State, including the justices of the Supreme 
Court, are, ex-officio, official visitors of the prison. They can go in and out 
freely, without let or hindrance. They can read the record of the inspectors, 
and the journal of the wardens, and communicate freely with the prisoners, and 
it is their duty so to do, and see that the officers of the prison perform their 
duty. That the prisoners be not oppressed ; that " cruel and unusual punish- 
ments " be not inflicted ; that the laws of the land be duly executed there, in 
the prison, as well as in other parts of the State. For this the official visitors 
were appointed. How have the inspectors and official visitors performed their 
respective duties 1 Let the evidence in this cas?, the affidavits that have been 
read, answer. 

No sooner is Dorr, in hot haste, hurried to prison, than these mild and humane 
rules, these laws of the State, manifestly referring to the supreme law of the 
land, as the basis upon which they are to rest, are superseded by a new code,"* 
put in practice by the prison inspectors, if not in solemn form enacted by them, 
and put upon their records. In violation of these laws, the inspectors of the 
prison say that Dorr shall not see father, mother, brother, or sister, nor even 
counsel, and the stern edict is sternly enforced. After a month of delay, the 
former counsel of Dorr made a formal application for liberty to consult with 
him, in the prison, in reference to an appeal to this tribunal by a writ of error. 
This was refused by the inspectors. The latter proposed a reference to the 
judges of the Supreme Court of the State, and to the Legislature. Irregular as 
this procedure was, it was resorted to, and proved ineffectual. All access to 
their client having been denied them, Messrs. Burgess and Turner, for themselves 
and Mr. Atvvell, abandoned the cause, and declared, that as they were forbidden 
to consult with him they would take no further measures or means to carry up 
the case by writ of error. 

In this extremity, the neighbors of the prisoner, prompted by feelings of hu- 
manity, interposed, by employing General Fessenden and myself to render our aid 
in bringing the case, by writ of error, before this Court for revision ; in the confi- 
dent expectation, that, under the circumstances, the peculiar hardships of this 
case, such interposition will be looked upon with fiivor, and allowed by this tri- 
bunal. The affidavits prove, that by virtue of this employment, we applied to 
the inspectors of the prison for liberty to see the prisoner upon the subject, and 
that this request was, after taking time for consideration, refused. That we 
then presented a petition to Thomas M Burgess, Esq., mayor of Providence, 
who is the chairman of the board of in.spectors, with a request that he would 
permit said Dorr to read and sign it, if he should think proper to do so. The 
reply of Mr. Burgess to this plain and reasonable request, exhibits not merely 
his own decision, but the long foregone determination of the authorities of 
Rhode Island. He speaks for himself, and he speaks for his fellows. He 
knows their mind and will, upon the subject, for he has consulted with them; 
and they already agree with him, that Dorr should never sign or see such a 
petition ! That it was the determination of the authorities of the State, that said 
Dorr should have no opportunity to carry up his case by writ of error, and they 
did not intend that there should be any interference on behalf of said Dorr for 



SUPREME COURT U. S. 41 

that end • This bold attack upon the rights of a prisoner in their power, suffi- 
ciently indicates the kind of law and order which prevails in Rhode Island. 
The authorities of that State are not ignorant of the right of Dorr to come before 
this tribunal for a revision of his case. They know it lull well. 1 hey tacitly 
admit that they know the fact, by combining to deprive him of the benefit ot it. 
After much persuasion, the chairman of the board of inspectors consented to 
show the petition to the other members, and consnll with them. But, as he de- 
clared beforehand, so the tact turned out. He knew ih^ii they, as well as lum- 
self, were resolved that Dorr should neither sign nor see the petition. 1 he 
letter of this officer which accompanies the return of the papers, and which 
makes a part of the evidence in support of this motion, after stating, that the 
other members of the board had been consulted, and now as before, agreed with 
him in taking no action upon the request, adds as the reason, " because it is so 
very similar ni its character to one which the general assembly, at their October 
session, virtually refused to grant." _ i .i rcj •* 

Another branch of the government, the executive, it appears by the alhdavit 
of Col Eddy, was applied to, to permit the prisoner to see and sign the petition. 
As the Governor was an official visitor, it was supposed there could be no im- 
propriety in his taking the petition to the prisoner, for perusal and signature. 
The law of the State upon the subject was supposed by distinguished civilians 
to authorize the Governor to do this ; but that officer took a different view of 
his power under that law, and as ho alleged, for want of power, refused to 
present the petition to the prisoner or permit any one else to do so. 

Without questioning the sincerity of the Governor in the view which he ex- 
presses of his want of power, it may be remarked as a singular fact, that no 
branch of the Government of Rhode Island could be. induced to make the 
slicrhtest effort to promote the desire of the prisoner to obtain a writ of error. 
The inspectors declare that the authorities of the State have resolved that 
Dorr shall have no opportunity thus to carry up his case, and nothing appears 
to discredit their assertion. What a spectacle! The whole power of the 
State placed in the hands of a horde of prison inspectors, and brought to bear 
upon a sin-le individual, who is claimed .to be civilly dead ! And for what > 
To keep hTm out of this Court ! Such a determination indicates anything but 
confidence in a cause which requires such means to sustain it. Dorr relies 
upon his innocence, and upon his ability to show, that in order to procure a 
verdict acrainst him, the Constitution has been violated. The authorities of 
Rhode Is'fand rely, not upon Dorr's supposed guilt, nor upon a consciousness 
that in his trial they have not violated the Constitution ; but upon the vigilance 
oi thciv hoard onmson inspectors to keep from his sight a petition! Ihey 
seem to rely, too, on the supposed power of their prison inspectors to persuade 
Dorr to petition, not to this Court to allow him to establish his innocence, it he 
can do so, but to them for a pardon ! They say that if he will ask for a par- 
don, he shall have it promptly. The chairman of the board of inspectors says 
he told him so ! What was Dorr's reply > We have not heard it yet ; but 
if this Court shall issue its process to bring him here, they may hear it trom 
his own lips, probably in the words of our revolutionary fathers in reply to a 
similar proposal fronr the minions of George III.: "Wo have comm.tted no 

offence, and want no pardon !" , , • .i + +i,„.„ 

The authorities of Rhode Island seem to be under a delusion, that there 
is no safety for themselves until Dorr shall confess that he is guilty ot a crime 
of which he asserts his innocence, and sue for pardon. He is ready to prove 
his innocence before this Court, or failing to do it, to sufTer the consequences 
This will not answer the purposes of the authorities aforesaid Indeed, it 
seems to be what they most dread. A delusion not entirely uuhke this, per- 



42 EX PARTE DORR;" 

vaded several towns in Massachusetts at the time of the Salem witchcraft. 
Some of the most quiet, harmless, and innocent persons in that vicinity, were 
indicted for the alleged crime of witchcraft — a crime which had no existence 
but in the minds of the accusers, and the authorities before whom the accused 
were arraigned. The delusion was so general, that to be accused was almost 
certain to ensure conviction. To defend, was worse than useless. Confession 
of guilt, or death under the gallows, were the alternatives. The friends of the 
accused joined with the authorities in imploring the accused to confess guilt. 
" But we are innocent," said the accused. " No matter," was the reply ; 
" you have no other way to escape death ! Death on the gallows ! !" 

In this awful predicament, some of tlie accused made confession of guilt, and 
thus saved their lives. Margaret Jacobs made such a confession, and was par- 
doned, or entitled to pardon. But Margaret Jacobs was a conscientious woman, 
and was seized with horror on reflecting that she had confessed to a lie. She 
sent for a friend, who drew up for her a retraction of her confession, which 
she signed as it were in the face of death and the authorities, and died under the 
gallows, rejoicing in her innocence, and that she had, by her retraction, 
escaped the lying snare of the authorities. Margaret Jacobs suffered, but not 
for crime. The alleged crime of witchcraft was wiped away by confession ; 
but she suffered for the truth, for asserting her innocence ! 

At length one of the accused commenced a suit against his accusers for de- 
famation, which did much to arrest the delusion. The authorities, their coun- 
sellors and prompters, were made sensible of the crimes they had all commit- 
ted, in combining to accuse, condemn, and execute, innocent persons. They 
did what they could to mitigate the sufferings of some of the living victims, 
but they could not re-animate Margaret Jacobs, and other tenants of the grave 
on "Gallows Hill." 

The authorities of Rhode Island seem disposed to treat Dorr as Paul was 
sometimes treated by the Roman Courts. That great Apostle of the Gentiles 
was a lawyer of no inconsiderable attainments in the science of the civil law. 
He well knew the Roman law ; and when falsely accused by his Jewish or 
Roman brethren, appealed to its provisions, to protect him from mock trials, as 
well as from punishment without trial. This Apostle had an exalted opinion 
of " due process of law " before punishment. The Supreme Court, the Court 
of the highest appellate jurisdiction in Paul's time, was held by Ccesar. Falsely 
charged with sedition, and other crimes, perhaps treason, and finding that his 
enemies had conspired against his life ; bandied about by the Roman Judges, 
and in danger of being sent to Jerusalem to be sacrificed, the Apostle asserted 
his right of appeal. " I appeal," said he " to Ceesar :" and the Court of Fes- 
tus, after due conference upon the matter, allowed the writ of error. " Hast 
thou appealed unto Cffisar .'' unto Caesar shalt thou go," said the Court : and 
they sent the illustrious prisoner, through perils of storm and shipwreck, up to 
the Supreme Court, to the judgment-seat of Ceesar, for the establishment of his 
innocence. 

In this last particular, the authorities of Rhode Island have departed widely 
from the precedent of the Roman Court. When Dorr asserts his innocence, 
and appeals to Csesar, to the Supreme Court of this country for an opportunity 
to establish it, the authorities of Rhode Island combine together, and tell him, 
unto Caesar shalt thou not go ! You may confess yourself guilty of a crime of 
which you say you are innocent, and ask our pardon ; but you shall not go to 
the Supreme Court of the United States for justification ! You shall not go to 
Washington with your case at all, but you shall go to the State prison and paint 
fans for life, or ask our pardon ! Such is the practical language of the barbar- 
ous authorities of Rhode Island, to an American citizen who, it is believed, this 



SUPREME COURT U. S. 43 



.ourt will say, has a right to send up his defence foyev.s.on^ If such men 
do not out-Herod the Herods of Galilee, thoy out-Algenne the Algennes of 
Barbary ' This contempt of the supreme law, and of the rights of American 
dozens, on the part of the authorities of Rhode Island, brings to mind another 
Sent in the life of St. Paul. In company with Silas, Paul encountered the 
witchcraft or divination of a fortune-teller, and cast out the ev. sp.nt. n re- 
7en-e for the lost hope of their gains, the members of the craft drao,ged Paul 
Ind'silas before the magistrates, who stripped oft" their clothes, and ordered 
?hem to be lynched until, f^erhaps, the blood ran down to heir heels^ Cast 
nto pi^^on, under a strict charge to the jailor, that otiicer put in force the new 
and severe rules and regulations of the authorities. An earthquake suddenly 
fnterposed and shook every stone in the foundation of the prison, and set the 
pHsoners at liberty to escape, but they would not flee. 1 he warden w^s 
alarmed and the magistrates too, but not like the warden, to contrition. The 
^alTsStes sent theii- officers to the warden, with orders to let Paul and S.ks 
r°and the warden delivered the message with an exhortation to peace ^ow 
fet us hear the law from the illustrious prisoner, the Christian, as well as the 
Jewish and the Roman lawyer. " They have beaten us openly, uncondemned 
beZ Romans"-with the rights of Romans, to a trial, aye, and a revision of 
defence too, before punishment-" and have cast us into prison ; and now do 
S t^'i"k to thrust us out privily ? nay, vek.lv ; but let them come themselves 
and fetch us out." And he made them do it. He made them come down to 
the pifon shattered as it was, and attend to their own jad delivery. Paul 
knew the iLw, and he compelled the magistrates, the courts without even mJr^- 
«a/Tu isdiction in the case, ultimately to submit to its supremacy, and ce tify 
him ee "stead of praying to such courts for pardon, Paul soon taught them 
fo pray to him and SilL for impunity for such outrageous acts of violence, per- 
petrated in the consecrated sanctuary of justice. . j at • if 
An interposition of that character is not now to be expected Nor is it 
need ul Let but the process of this court go forth, to bring up either Dorr or 
hL case and if the authorities of Rhode Island do not tremble as did the magis- 
trates who lynched Paul, the former may have as good an opportunity to certify 
Dorr f^^e from the crime of treason, as the latter had to release Pau At any 
rate Dorr thinks he has a right to come here for a revision ; and until he does 
come here, or learns from this Court that he cannot come, he will never ask for 
mXn If this Court should revise his defence, and say that he had commit- 
ted trLon, Ue decision would doubtless have its due weight with h.m and 
with the great body of the people who deem him innocent, and will so deem 
Tim untir this Court shall decide against him. In that event although cou- 
scous "nothing but pure and laudable intentions in the course he has pursued 
he mlht perhaps be justified in asking for a pardon. It he could not do that, 
he would submit to his punishment with dignified composure. . ,. ^ . 
'^.at this case is cleaHy embraced by the appellate J-'-hction of this Court 
will nrobablv not be denied. Still it may not be amiss to refer the Court to one 
other case7that of Cron^ell v. Rarrdail, Wth Peters^ R, 392, 39S, m which 
after reference to many cases, the Court consider the rule as too firmly settled 
^ be shaken The writ of er'ror in that case was disallowed because the record 
d^d no exhibit a case of jurisdiction. Admitting this Court to have jurisdiction 
in this ca^e, it is important to inquire whether either the executive, legislative, or 
udiciarpo;er of Ly State, or'the three branches of a ^:^tate government com- 
bined, can, by any means, deprive this Court of «"^Vm v Ifltr as 
dispo ition to do so has existed, appears by the case of Martm v. HujUcr^l 
well as by the case of Dorr. But the question, though impor ant seems to be 
we settled. So far as power is clearly given by the Constitution to this Court, 



44 EX PARTE DORR; 

or to either branch of the general government, it is supreme and controlling 
over the State authorities : all of which are under the strongest obligations 
which human authority can impose, to support the " supreme law of the land." 
The cases of McCulloch v. Maryland^ 4 TFAea^, 316,and Westonx. The City 
Council of Charleston, 2 Peters^ K., 449, must be considered as settling the gen- 
eral doctrine, " that the States have no power, by taxation or otherwise, to re- 
tard, impede, burden, or in any manner control, 'the operations of the Constitu- 
tional laws enacted by Congress, to carry into execution the powers vested in 
the general government." — 2 *S7on/'s Com. on Con., 495. And further, " that 
the powers of a State cannot, rightfully, be so exercised, as to impede and ob- 
struct the free course of those measures, which the government of the United 
States may rightfully adopt." — 76-, 497. The Courts of the United States 
have exclusive authority over their own judgments and proceedings. — lb. Hi. 
625. McKimv. Voorhis, 7 Crunch R.,21Q. "Nor can any State Court, or 
any State Legislature, annul the judgments of the Courts of the United States, 
or destroy the rights acquired under them. — United States v. Peters, 5 Cranch^ 
115 — nor in an?/ ??tanner deprive the Supreme Court of its appellate jurisdiction 
— Wilson V. Mason, 1 C ranch, 94 — nor in any manner interfere with, or control 
the process (whether mesne or final) of the Courts of the United States — 
United States v. Wilson, 8 Wheaton R., 253 — nor prescribe the rules or forms 
of proceeding, nor effect of process, in the Courts of the United States — Way- 
man V. Southard, 10 Wheaton R., 1, 21, 22 — nor issue a mandamus to an officer 
of the United States, to compel him to perform duties, devolved on him by the 
laws of the United States." — McClung v. Silliman, 6 Wheaton R., 698; 3 
Story''s Com. on Con., 625. Many other judicial decisions to the same effect 
might be cited, but the position is deemed too strong to need their support. 
Taking for granted, then, that this Court have appellate jurisdiction over this 
case, the question presents itself, in what way shall it be exercised .'' By allow- 
ing the writ of error upon the petition of the friends of the prisoner, or by issuing 
a writ of habeas corpus, to bring him before the Court ? It is contended that 
the Court have full power to do either. The former mode is plainly prescribed 
by the judiciary act of 1789. The latter mode, it is maintained, is also pre- 
scribed by the same act, although, it may be admitted, some degree of ambigui- 
ty may appear in the provisions of that act, in this, and some other important 
particulars. 

The object of this part of the act of 1789 was, to carry out, into practical 
operation, two important provisions of the Constitution ; the one relative to the 
appellate jurisdiction of this court, and the other to the great privilege or right, 
of the writ of habeas corpus. The provisions are remedial, and must be con- 
strued in favor of and not against, the remedy. The jurisdiction having been 
given, the duty was imperative to provide the means necessary to its exercise ; 
if, indeed, the power of the court to issue the writ in such a case as this, is not, 
necessarily, incident to these two constitutional provisions. 

The 14th section of that act, in providing, " that the courts of the United 
States shall have power to issue writs of scire facias, habeas corpus, and all 
other writs not specially provided for by statute, which may be necessary 
for the exercise of their respective jurisdictions, and agreeable to the principles and 
usages of law," was, beyond question, intended, to the full extent of its terms, to 
apply to these two provisions. The sentence gives ample power, and it gives 
no more. The reason or object of the power is given — the exercise of jurisdic- 
tion, and the writs must be issued according to law. The power is manifestly 
within the scope and objects of the Constitution, and no necessit}^ existed for a 
further proviso to restrict it. 

The next sentence gives power to the separate justices of the courts to issue 



SUPREME COURT U. S. 45 

writs of habeas corpus, not for the necessary exercise of jurisdiction, but for the 
purpose oi inquiry into the cause of commitment ; and to this sentence is annexed 
a proviso, which, it is maintained, cannot be so appHed to the former sentence, 
if apphed to it in any degree, as to deprive this court of the power of exercising 
a clear case of appellate jurisdiction. Such a construction, it is apprehended, 
would not only eviscerate this clause of a remedial statute, but would strike at 
the Constitution ; and in all cases like the one now under consideration, would 
operate as a perpetual suspension of the " privilege of the writ of habeas cor- 
pusV So favorably has this provision of the Constitution been interpreted by 
the State judges, that they have issued writs of habeas corpus, " in cases where 
the party has been in custody under the authority of process of the courts of the Uni- 
ted States.''^ — 3 Story''s Com. on Con., 625. It would be a singular anomaly in 
our system of government, to allow the inferior power to issue the writ of ha- 
beas corpus and take a person from the custody of the superior power ; and deny 
to the superior power the right to issue the writ, when it should be necessary 
to the exercise of a case of acknowledged jurisdiction, because the party might 
be in custody of the inferior poicer. And shall the inferior power incarcerate a 
man who has a right to come before this tribunal for a revision of his defence, 
and say that he shall have no opportunity to come up hither ? Shall the State 
of Rhode Island be sustained in such a course, or shall she be made to bow in 
submission to the "supreme law of the land," as uniformly interpreted by this 
court. The great States of New York, Pennsylvania, Virginia, Ohio and Ma- 
ryland have promptly submitted to the decisions of this court. So must the 
small State of Rhode Island submit, if she shall be found, as other States have 
been found, to have passed acts repugnant to the Constitution of the United 
States. 

A case like this of Dorr's has never before occurred. It will be in vain, 
therefore, to seek for precedents entirely applicable to it. The case, Ex parte 
Bollman (4 Crunch R., 75), may be referred to, as sustaining the general prin- 
ciple, that the power of Courts, and of this Court, to issue writs of habeas cor- 
pus, for the exercise of their respective jurisdictions, is a constitutional power, 
and is given to this Court by the judiciary act of 1789. The Court in that 
case granted the w rit of habeas corpus, because it had appellate jurisdiction. 
In the case. Ex parte Kearney (1th lllieaton^s R., 38), the Court refused to 
grant the WTit, because it had no jurisdiction in the case. The power of this 
Court to issue the writ is, it is confidently contended, co-extensive with its ap- 
pellate jurisdiction. 

The friends of the prisoner who have petitioned for the interposition of this 
Court in the case, have, in common with the great body of the people whose 
attention has been drawn to the subject, taken a deep intei'est in having the 
case deliberately revised by this Court. Coming as its members do, from va- 
rious and distant States, and removed by their official stations, as well as by 
habit and age, from exciting party contests, the solemn judgment of this tribu- 
nal in this, as it has in other exciting cases, w^ould doubtless allay every improper 
feeling, and be cheerfully, nay, joyfully acquiesced in by the w'hole country. 
If the Court shall now decide to issue the writ of habeas corpus, and bring the 
prisoner to this place, his friends, who have long sympathized with his suffer- 
ings, will be enabled to mingle with unwonted zest in the scenes of gladness 
and joy which the approaching holidays will witness. The act, it is main- 
tained, is due to the case ; and the time, it is submitted, would be exceedingly 
appropriate for the performance of it 



EX PARTE DORR; 



MK. JUSTICE McLean delivered the opinion of the court over- 
ruling THE MOTION. 

Ex parte : Application of Thomas W. Dorr for a writ of habeas corpus. 

Thomas W. Dorr was convicted before the Supreme Court of Rhode Island, 
at March term, 1844, of treason against the State of Rhode Island, and sen- 
tenced to the State's prison for life. And it appears from the affidavits of 
Francis C. Treadwell, a counsellor at law of this court, and others, that per- 
sonal access to Dorr, in his confinement, to ascertain whether he desires a writ 
of error to remove the record of his conviction to this court, has been refused. 
On this ground the above application has been made. 

Have the court power to issue a writ of habeas corpus in this case ? This is 
a preliminary question, and must be first considered. 

The original jurisdiction of this court is limited by the Constitution to cases 
affecting ambassadors, other public ministers and consuls, and where a State is 
a party. Its appellate jurisdiction is regulated by acts of Congress. Under 
the common law, it can exercise no jurisdiction. 

As this case cannot be brought under the head of original jurisdiction, if 
sustainable, it must be under the appellate power. 

The 14th section of the judiciary act of 1789 provides, "That the courts 
of the United States shall have power to issue writs oi scire facias, habeas 
corpus., and all other writs not specially provided for by statute, which may 
be necessary for the exercise of their respective jurisdictions, and agreeable to 
the principles and usages of law. And that either of the justices of the 
Supreme Court, as well as judges of the district courts, shall have power to 
orant writs of habeas corpus for the purpose of an inquiry into the cause of 
commitment : provided that writs of habeas corpus shall in no case extend 
to prisoners in jail, unless where they are in custody under or by color of 
the authority of the United States, or are committed for trial before some 
court of the same, or are necessary to be brought into court to testify." 

In the trial of Dorr, it was insisted that the law of the State, under which 
he was prosecuted, was repugnant to the Constitution of the United States. 
And on tliis ground a writ of error is desired under the twenty-fifth section of 
the judiciary act above named. That as the prayer for this writ can only be 
made by Dorr, or by some one under his authority, and as access to him in prison 
is denied, it is insisted that the writ to bring him before the court is the only 
means through which this court can exercise jurisdiction in his case by a writ 
of error. 

Even if this were admitted, yet the question recurs, whether this court has 
power to issue the writ to bring him before it. That it has no such power 
under the common law, is clear. And it is equally clear that the power nowhere 
exists, unless it be found in the fourteenth section above cited. 

The power given to the courts in this section to issue writs of scire /acia^, 
habeas corpus, &c., as regards the writ of habeas corpus is restricted by the 
proviso to cases where a prisoner is " is in custody under or by color of the 
authority of the United States, or has been committed for trial before some 
court of the same, or is necessary to be brought into court to testify." This is 
80 clear, from the language of the section, that any illustration of it would seem 
to be unnecessary. The words of the proviso are unambiguous. They admit 
of but one construction ; and that they qualify and restrict the preceding pro- 
visions of the section, is indisputable. 

Neither this, nor any other court of the United States, or judge thereof, can 
issue a habeas corpus to bring up a prisoner who is in custody under a sentence 
or execution of a State court, for any other purpose than to be used as a wit- 



EX PARTE DORR; SUPREME COURT U. S. 47 

ness. And it is immaterial whether the imprisonment be under civil or criminal 
process. As the law now stands, an individual who may be indicted in a circuit 
court, for treason against the United States, is beyond the power of federal courts 
and judges, if he be in custody under the authority of a State. 

Dorr is in confinement under the sentence of the Supreme Court of Rhode 

Island consequently this court has no power to issue a habeas corpus to bring 

him before it. His presence here is not required as a witness, but to signify to 
the court whether he desires a writ of error to bring before this tribunal the 
record of his conviction. 

The counsel in this application prays for a writ of error ; but, as it appears 
from his own admission that he does not act under the authority of Dorr, but 
at the request of his friends, the prayer cannot be granted. In this view, it 
is unnecessary to decide whether the counsel has stated a case which, with the 
authority of his client, entitles him to a writ of error. 

The motion for a habeas corpus is overruled. 

Ex parte : In the matter of Thomas Wilson Dorr, on petition for a writ of 
habeas corpus, or for a writ of error to the Supreme Court of the State of Rhode 
Island : 

On consideration of the motion made by Mr. Treadwell, of counsel for the 
petitioner, on a prior day of the present term of this court, to wit : on Wednes- 
day, the 11th iastant, and of the argument of counsel in support of the motion 
thereupon had, it is now here ordered and adjudged by this court that the said 
motion be, and the same is hereby, overruled. 

By Mr. Justice McLean. 

27th December, 1844. 



['• Working Man^s Advocate" Extra. Read and Circulate.] 
thih pxnv ntjET 

Is issned at the suggestion of a Lady (the Vv^ife of a distinguished Philanthropist and 

large Landholder of New- York) who approved of the National Reform Measure, 

and contributed $10 for the purpose of placing it before Governors 

and Legislators throughout the Union. 



YOUWO AlflEKICAI 



••Tlic J^andshrtll not be sold for- 
ever." — Moses. • 

"There is no foundation in nature 
or in natural law, w.y a set of words 
on parchment should convey tha do- 
minion of /.Mnd.' — Blackstone. 




"The mass of mankind has ndt 
been born with saddles on their 
backs, nor a favored few booted and 
spurred, ready to ride them legiti- 
mately by the grace of God."— TAo- 
mas J^eriou. 



rRIWCIPLES Al^D OBJECTS 

OF THE 

NATIONAL REFORM ASSOCIATION, 

OR 

AGRARIAN LEAGUE. 



BY A MEMBER. 



Fellow-Citizens : 

What is the present condition of things among U3 1 That equa- 
lity which is declai-ed, by the great charter of our independence, to be 
the birthright of all, is not realized. The laborer does not receive a just 
recompense for his toil. Labor is rewarded in an inverse ratio to its 
usefulness. Those who produce the most are allowed to consume the 
least. New luxuries are provided for some, by those who do not receive 
a sufficiency of the necessaries of life. Men and women are in want, in 
the midst of an abundance created by themselves. Crime and Pauper- 
ism increase. Prisons and poor houses are multiplying. Yet, do party 
leaders propose anything more than palliatives for these evils % 

Let us look around. At the South, the master lives in opulence on 
ihe labor of his colored slaves, whose stimulus to exertion is too often 
the driver's lash, but who are, almost universally, provided with the 
absolute necessaries of life in all stages of their existence. At the 
North, tlie master has a lash more potent than the whipthong to stimu- 
late the energies of his white slaves — the fear of xoant. At the (as yet 
comparatively free) far West, mercenary capitalists are continually 
throwing obstacles in the way of those who seek in its wilds a refuge 
from oppression. Are these things right / Is it right that any man 
should be compelled, by any sort of force, to work for any other man to 



\ 



■* YOUNG Al^ERICA. 

obtain the means of existence ? Thousands are now prepared to an- 
swer these questions in the negative. Ti-ue, they have not all ^reed 
ui^on the remedy ; but they see the diseas\ and that is one point ^dned • 
and they know the origin of it, and that is,another. With thousands' 
t^retore, it only remains to discover the rcmedij for the evils that now 
afflict Humanity. 

Human improvement is progressive. By slow degrees men have 
arrived at the art of self-government. Having thrown off some of the 
shackles by which the few held the mass in bondage, of mind as well 
as body our progress in reform ought now to be more rapid. It will 
be so. Self-government will be followed by less government : le.s Go- 
vernment, perhaps, by none at all. The time for less government has 
arrived. & a=. 

Individuals are prepared for all great and beneficial changes before 
the mass, and must go forward as pioneers. We contend for less 
government. We say to our public agents, cease to interfere, in tlic 
business arrangements of the people j let their voluntarvcflflAtacts be 
adjusted between themselves, so that character, and no1l0be^m]\ be 
the dependance for their fulfilment. Lej.tl^em ^e^^l^i- oun markets 
without let or hindrance. Aim to prevektcAe] and^to reform rather 

han pumsh the criminal. And, ehoveM,. arrest the mmonoly of the 
land. Follow these principles, and you will .find your statute books 
reduced nine-tenths in bulk. 

_ We say to our legislators, male the Puhlic Lands free— ?vee as the 
air or the water— to those who are now deprived of their birthright 
and have no home. Say no longer to the heartless speculator, come,' 
and monopohze, for your selfish purposes, that which would give the 
means ot susteoance and enjoyment to your fellow creatures. Tempt 
no longer the fortunate worker, the one of a hundred who has chanced 
to obtain a small prize in the lottery of human folly and misery, to invest 
his hard earnings m the purchase oHiis own, isolating him from his less 
tortunate fellows, and placing him in a position, in which his own 
safety will urge him to shift his own burden to their shoulders. Look 
about you, and ^ee if you wish to establish on Nature's wide domains, 
a counterpart of thaf cursed system of splendid misery and squalid 
wretchedness tha^ow prevails on the land held as private property. 
JJo it by xvay of experiment, if you please ; you experiment at far greater 
cost to the nation. Let the trial be made, whether it would not be cheaper 
even, to let the vast surplus laboring populations, which it is the ten- 
dency ol our present system to produce, be getting their own living on 
the now waste soil, leaving full omployment for the rest, than to support 
the prisons and poor houses necessary to accommodate that portion who 
cannot through other means obtain a scanty and precarious subsistence. 

In a word, we say to government, that is, the people, no longer with- 
hold from men their rights "to life, liberty, and the pursuit of happi- 
ness the very foundation of which is the right to the soil. Undo what 
you have done contrary to that first great principle of your Declaration 
ot Independence, and then let men alone, to work out their own salvation. 



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